Rights of Dower & Curtesy in Real Property

Instructor: Shawn Grimsley
Dower and curtesy are legal concepts that can be traced back to the medieval period and are still relevant in some states today. In this lesson, you'll learn about dower and curtesy as it concerns real property law.

Historical Basis

The first thing you need to remember is that dower is not the same thing as dowry, which is the property a bride brings to her husband to help support the marriage. Now that we've gotten that out of the way, let's head back to medieval England for a moment.

Oftentimes, the real property owned by a medieval husband was typically not inherited by the wife nor was the wife's property inherited by her husband. Instead, the property would either go to the children or some other member of the husband or wife's line. This situation could leave either spouse in poverty upon the death of the other. In response, English common law developed the doctrines of dower and curtesy (sometimes spelled courtesy). These common law doctrines followed the pilgrims across the pond and exist to date in a few states. So, let's take a look.

Dower & Curtesy Defined

At common law, the estate of dower is held by a widow upon her husband's death and consists of a life estate of one-third to one-half of the land owned by her husband if he held a freehold interest in the land (e.g., a fee simple) and the land is inheritable by the issue of the marriage. Issue is just a fancy word for natural born children and other lineal descendants of the husband and wife, such as grandkids.

As you might expect, the estate of curtesy is held by a widower upon his wife's death. However, at common law, curtesy gave the widower a life estate in any freehold interest, such as a fee simple, held by the wife during the marriage so long as the property is inheritable by the children (i.e., issue) of the marriage. A widower only has a right to curtesy if children were born alive during the marriage, which isn't a requirement of dower for the widow. On the other hand, the widower gets a life estate in all of the wife's property, while a widow only gets somewhere between one-third to one-half of her deceased husband's property.

Going Extinct & Elective Shares

Nearly all states have abolished dower and curtesy. In its place, states have enacted a statutory elective share . An elective share is simply a percentage of the deceased spouse's estate to which the surviving spouse is entitled under the relevant state statute. The spouse may elect (i.e., choose between) either the share provided for in the statute or what the deceased spouse provided in the will. This elective share prevents a spouse from disinheriting the other.

The states that currently have dower and curtesy also provide for a statutory elective share, which is often greater than the dower or curtesy. Consequently, spouses usually chose the statutory share rather than the dower or curtesy.

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