This guest post is courtesy of Heather Grace Spencer, Regent Law 2L:
When
you hear the words dower and curtesy, what comes to your mind? Perhaps, you
think of a Jane Austen novel or a time when marriages were arranged. While true
that dower and curtesy relate to marriage, you likely believe that these
archaic-sounding words are no longer used in the legal profession. You would be
partially right because all states in the United States of America except
Arkansas, Ohio, and Kentucky have abolished dower and curtesy rights. This blog
will briefly explain the development of dower and curtesy rights by using the
state of Arkansas as an example.
You
may still be wondering what the words “dower” and “curtesy” mean. Black’s Law
Dictionary defines “dower” as “at common law, a wife’s right, upon her
husband’s death, to a life estate in one-third of the land that he owned in
fee.”[1]
Black’s Law Dictionary also defines “curtesy” as “at common law, a husband’s
right upon his wife’s death, to a life estate in the land that his wife owned
during their marriage, assuming that a child was born alive to the couple.”[2]
As you can see from the definitions, common law showed preference for the wife
to obtain her right of dower over the husband’s right to obtain his right of
curtesy because the husband had to fulfill the additional condition of having
marital children in order to obtain curtesy rights.
Historically,
the rights of dower and curtesy have existed in the common law and were codified
in the Magna Carta. Some estimate these spousal rights might possibly be even
more ancient.[3] From the
time of its statehood, Arkansas has used dower and curtesy and continues to do
so.[4]
Although dower and curtesy were and still are inherently gender-based laws, the
Arkansas Supreme Court of the United States took the position at first in Stokes
v. Stokes that gender-based laws are valid as long as the laws “serve a
legitimate governmental purpose and are reasonably designed to accomplish that
purpose.”[5]
Later that year, the Arkansas Supreme Court in Hess v. Wims realized
that showing preference to dower over curtesy rights was discriminatory and, therefore,
unconstitutional. This ruling caused the Court to treat dower and curtesy as
equivalent.[6]
Although
statutory law still differentiates between dower and curtesy in word, the actual
rights of dower and curtesy are the same in deed. Evidence of this can be seen in
A.C.A. § 28-39-401 (2024), which states:
(1) The
surviving spouse, if a woman, shall receive dower in the
deceased husband's real estate and personal property as if he had died
intestate. The dower shall be additional to her homestead
rights and statutory allowances; and (2) The surviving spouse, if a man,
shall receive a curtesy interest in the real and personal property of
the deceased spouse to the same extent as if she had died intestate. The curtesy
interest shall be additional to his homestead rights and statutory
allowances (emphasis added).
Some argue that Arkansas should abolish
dower and curtesy rights because these rights are basically nonexistent.
However, a study examining 2,027 warranty deeds from just one county (i.e.,
Pulaski County) in Arkansas dating from April 2001 to October 2015 showed 18.6%
of couples relied on dower and curtesy rights to claim property.[7]
Thus, if hypothetically 18.6% of all the couples of the seventy-five different
counties in Arkansas depend on dower and curtesy rights, then quite a few could
be adversely affected by the legislature eliminating these rights.
In a sense, the Arkansas legislature’s
choice to keep dower and curtesy produces two results. First, dower and curtesy
rights encourage an Arkansan to marry by knowing his or her respective spouse
will more likely than not be provided for in the event of his or her death.
Second, although divorce, being married for less than a year if testate (e.g., having
a will that does not explicitly name one’s respective spouse), or a prenuptial
agreement could take away dower and curtesy rights, a prudent Arkansan should
still be careful to marry wisely by knowing his or her spouse might take
against his or her will in the event of his or her death. These results fit
well with the Christian principles of caring for widowed spouses and marrying
wisely. Whether the rights of dower and curtesy will continue or become a relic
of the past remains to be seen. For the present, dower and curtesy continue to
exist in Arkansas, Ohio, and Kentucky.
[1] Dower Definition, Black’s Law
Dictionary (10th ed. 2014).
[2] Curtesy Definition, Black’s Law
Dictionary (10th ed. 2014).
[3] J. Cliff McKinney, With All
My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in
Arkansas, 38 U. Ark. Little Rock L. Rev. 353, 355 (2016),
https://lawrepository.ualr.edu/lawreview/vol38/iss3/8.
[4] Id. at 353.
[5] Stokes v. Stokes, 613 S.W.2d 374, 375, 271 Ark.
301, 303 (1981).
[6] Hess v. Wims, 613 S.W.2d 85, 87,
272 Ark. 45, 48-49 (1981).
[7] J. Cliff McKinney at 424.
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