dower


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Dower

The provision that the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children. A species of life estate that a woman is, by law, entitled to claim on the death of her husband, in the lands and tenements of which he was seised in fee during the marriage, and which her issue, if any, might by possibility have inherited. The life estate to which every married woman is entitled on the death of her husband, intestate, or, in case she dissents from his will, one-third in value of all lands of which her husband was beneficially seized in law or in fact, at any time during coverture.

The real property must be inheritable by the wife's offspring in order for her to claim dower. Even if, however, their marriage produces no offspring, the wife is entitled to dower as long as any such progeny of her husband would qualify as his heirs at the time of his death.

Prior to the death of the husband, the interest of the wife is called an inchoate right of dower, in the sense that it is a claim that is not a present interest but one that might ripen into a legally enforceable right if not prohibited or divested. It is frequently stated that an inchoate right of dower is a mere expectancy and not an estate. The law governing dower rights is the law in existence at the time of the husband's death and not the law existing at the time of the marriage.

The courts, however, protect the inchoate right of dower from a fraudulent conveyance—a transfer of property made to defraud, delay, or hinder a creditor, or in this case, the wife, or to place such property beyond the creditor's reach—by the husband in contemplation of, or subsequent to, the marriage. Protection is also available against the claims of creditors if the claims arose after the marriage. The posting of security can be required to protect the interest if oil, gas, or other substances are removed from the land, which thereby results in a depreciation—a reduction of worth—with respect to the value of the estate. Decisions supporting a contrary view take the position that a wife cannot interfere with her husband's complete enjoyment of the land during his lifetime.

A wife can relinquish her inchoate right of dower by an antenuptial agreement—which is a contract entered into by the prospective spouses prior to the marriage that resolves issues of support, division of property, and distribution of wealth in the event of death, separation, or divorce—or by a release, that is, the relinquishment of a right, claim, or privilege.

The claim of dower is based upon proof of a legally recognized marriage, as distinguished from a Good Faith marriage or a de facto marriage—one in which the parties live together as Husband and Wife but that is invalid for certain reasons, such as defects in form. A Voidable marriage, one that is valid when entered into and which remains valid until either party obtains a lawful court order dissolving the marital relationship, suffices for this purpose if it is not rendered void—of no legal force or binding effect—before the right to the dower arises.

Most states have varied the dower provisions. The fraction of the estate has frequently been increased from one-third to one-half. The property affected has been expanded from realty only to both realty and personalty. The time of ownership has sometimes been changed from "owned during marriage" to "owned at death." The type of interest given to the surviving spouse has been expanded from a life estate to outright ownership of property.

In many states, a widow is entitled to a statutory share in her husband's estate. This is often called an elective share because the surviving spouse can choose to accept the provisions made for her in the decedent's will or accept the share of the property specified by law of Descent and Distribution or the particular law governing the elective share. In many jurisdictions, dower has been abolished and replaced by the elective share. In others, statutes expressly provide that a spouse choose among the elective share, the dower, or the provisions of the will.

Common Law prescribes that an absolute Divorce will bar a claim of dower. A legal separation—sometimes labeled a divorce from bed and board, a mensa et thoro—does not end the marital relationship. Unless there is an express statute, such a divorce will not defeat a claim of dower. This is also true with respect to an inter-locutory decree of divorce, an interim or temporary court order.

In some states, statutes provide that dower can be denied upon proof of particular types of misconduct, such as Adultery, which is voluntary sexual intercourse of a married person with a person other than his or her spouse. Statutes in several states preserve dower if a divorce or legal separation is obtained due to the fault of the other spouse.

In many states, statutes provide that a murderer is not entitled to property rights in the estate of the victim upon the principle that a person must not be allowed to profit from personal wrong. Following this theory, a Constructive Trust will be declared in favor of the heirs or devisees of the deceased spouse.

Further readings

Brand, Paul. 2001. "'Deserving' and 'Undeserving' Wives: Earning and Forfeiting Dower in Medieval England." Journal of Legal History 22 (April): 1–20.

Cross-references

Premarital Agreement.

dower

n. an old English common law right of a widow to one-third of her late husband's estate, which is still the law in a few states. In those states the surviving wife can choose either the dower rights or, if more generous, accept the terms of her husband's will in what is called a widow's election. In an obvious sexist imbalance, a surviving husband's equivalent right (called curtesy) is to the wife's entire estate, or if there are living children, to a life estate in everything. (See: curtesy, widow's election, descent and distribution)

dower

noun allotment, allowance, appanage, award, bequest, bestowal, bestowment, dos, dotation, effects, estate, inheritance, jointure, legacy, remainder, settlement, widow's estate, widow's portion
Associated concepts: consummated right of dower, dower interest, dower right, election of dower, essate in dower, inchoate right of dower, right of dower, widow's dower
Foreign phrases: Favorabilia in lege sunt fiscus, dos, vita, libertas.Favorites of the law are the treasury, dower, life, and liberty.

dower

the life interest in a part of her husband's estate allotted to a widow by law.

DOWER. An estate for life, which the law gives the widow in the third part of the lands and tenements, or hereditaments of which the husband, was solely seised, at any time during the coverture, of an estate in fee or in tail, in possession, and to which estate in the lands and tenements, the issue, if any, of such widow might, by possibility, have inherited. Watk. Prin. Con. 38; Litt. Sec. 36; 7 Greenl. 383. Vide Estate in Dower. This is dower at common law.
     2. Besides this, in England there are three other species of dower now subsisting; namely, dower by custom, which is, where a widow becomes entitled to a certain portion of her husband's lands in consequence of some local or particular custom, thus by the custom of gavelkind, the widow is entitled to a moiety of all the lands and tenements, which her husband held by that tenure.
     3. Dower ad ostium ecclesiae, is, when a man comes to the church door to be married, after troth plighted, endows his wife of a certain portion of his lands.
     4. Dower ex assensu patris, was only a species of dower ad ostium ecclesice, made when the husband's father was alive, and the son, with his consent expressly given, endowed his wife, at the church door, of a certain part of his father's lands.
     5. There was another kind, de la plus belle, to which the abolition of military tenures has put an end. Vide Cruise's Dig. t. 6, c. 1; 2 Bl. Com. 129; 15 Serg. & Rawle, 72 Poth. Du Douaire.
     6. Dower is barred in various ways; 1. By the adultery of the wife, unless it has been condoned. 2. By a jointure settled upon the wife. 2 Paige, R. 511. 3. By the wife joining her husband in a conveyance of the estate. 4. By the husband and wife levying a fine, or suffering a common recovery. 10 Co. 49, b Plowd. 504. 5. By a divorce a vinculo matrimonii. 6. By an acceptance, by the wife, of a collateral satisfaction, consisting of land, money, or other chattel interest, given instead of it by the husband's will, and accepted after the husband's death. In these cases she has a right to elect whether to take her dower or the bequest or devise. 4 Monr. R. 265; 5 Monr. R. 58; 4 Desaus. R. 146; 2 M'Cord, Ch. R. 280; 7 Cranch, R. 370; 5 Call, R. 481; 1 Edw. R. 435 3 Russ. R. 192; 2 Dana, R. 342.
     7. In some of the United States, the estate which the wife takes in the lands of her deceased husband, varies essentially from the right of dower at common law. In some of the states, she takes one-third of the profits, or in case of there being no children, one half. In others she takes the same right in fee, when there are no lineal descendants; and in one she takes two-thirds in fee, when there are no lineal ascendants or descendants, or brother or sister of the whole or half blood. 1 Hill. Ab. 57, 8; see Bouv. Inst. Index, h.t.

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