Sunday, September 09, 2007

Dower Rights

Dower was a widow's right to a lifetime interest in one-third of all land owned by her husband, unless she chose, in place of dower, to accept other property left to her under her husband's will. Generally, dower applied to each parcel of land in which the husband held an inheritable interest at any time during the marriage. In the United States, dower is found in the eastern and mid-western states where law was derived from the common law of England.

You must know exactly how dower operated at a particular time and place to form a hypothesis or a conclusion from the presence or absence of a wife or mother's mention in a deed, will, or intestate land distribution. For example, if you found a deed from a married man which his wife had not joined in making, does it mean that she had already died, or for other reasons did not join in the conveyance? In most American colonies and their successor states, a wife who had not joined in the deed could sue the purchaser after her husband's death to recover her dower interest.

To avoid such future problems, cautious purchasers insisted that the wife join in the deed, so the absence of her signature strongly suggests her earlier death. However, you'll find many differences from one state to another, including North Carolina.

A subscriber to this message board recently noticed certain Caswell County real estate transactions by a married man where no mention was made of the wife's dower rights, even though she was living. Here is an overview of North Carolina dower rights over the years:

1663-1783: Throughout marriage a wife had a right to one-third of her husband's real estate. She could not sell it, but he could not sell property without her consent. This was called dower by common law.

1784-1868: A wife's right to one-third of her husband's land became effective only at his death, meaning that during marriage his control was absolute. He could sell any and all of the property. His control was called his "curtesy." It probably was during this period that the transactions noted by the subscriber to this message board were made.

1869: Dower by common law was reinstated.

1960: Dower was abolished along with the husband's curtesy.

Generally, a widow's dower is protected from the husband's creditors. She also is entitled to the dwelling house and outbuildings. When a widow enters her petition for dower it appears on the minute docket as "Jane Doe vs. the heirs of [etc.]" This is a form of law and normally
is not an adversarial proceeding.

Though dower is allotted to the widow, she has only lifetime use of it. She never has fee simple ownership if there are bodily heirs surviving the husband. If a widow remarries, she still is entitled to the dower for her lifetime. Upon her death, the land goes to heirs of her first marriage. A sale can be transacted if her husband's heirs go on the deed with her. The dower can be transferred or swapped with one of the heirs, if the others are agreeable and execute quit claim deeds. Heirs, however, cannot not sell the dower out from under the widow. She has to consent to such a sale. Tip: If you are unsure whether a deed was executed by a man and his wife or by a namesake son and the widow, note whose name comes first. A wife's name does not
precede that of her husband in a legal instrument.

Not addressed here are the state privy examination laws whereunder a married woman who intended to sell or mortgage her own property was required to be interviewed by a public official in order to determine whether she understood the transaction and whether her husband had coerced her into it. This often is referred to as feme covert examination.

Sources and References:

Women and the Law of Property in Early America, Marylynn Salmon (Chapel Hill: University of North Carolina Press, 1986).

Ancestry Magazine, Vol. 12 No. 5 (1994).

North Carolina USGenWeb/North Carolina Questions & Answers.

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