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Dower - An Old Law With New Headaches

Unless you have the occasion to work with residential real property on a regular basis, it might not occur to you that dower or curtesy even exist. People generally only encounter it when they are selling or refinancing a home, and then it is just a matter of a few signatures. However, these seemingly innocuous statutory provisions can create problems for modern married couples.

What are dower and curtesy? Simply put, dower is a surviving wife's interest in her late husband's estate, and curtesy is a surviving husband's interest in his late wife's estate. So, rights in property owned by another. With that said, they can be described as inchoate rights, or non-vested rights, as the interest does not vest until the death of the owner spouse. [1] In case your eyelids were not heavy enough, dower and curtesy are not currently vested interests, but future expectancy interests or contingent remainders.

What exactly does that mean? It means that dower and curtesy obviously require that the couple be married and the owner spouse pre-decease the non-owner spouse. This means divorce and death of the non-owner spouse defeat dower and curtesy. It also means that property titled in joint survivorship is not subject to dower and curtesy while the joint tenants are all alive, as the property vests in the surviving party(ies) by operation of law and does not enter the estate of the decedent party.

Why do we have such a thing and where did this come from? Originally created and intended for the benefit of widows, the idea for dower has been around a long, long time, as the concept dates back to at least the middle ages. [2] Since marriage in the western world traditionally meant that the wife gave up all legal identity, and thus, she could not own property, dower was created as a security for the benefit of a woman who may survive her husband. [3] In essence, it gave the wife some protection during the marriage, as her husband could not convey his real property without her permission. Curtesy's origins are a bit shakier, the effect is the same, but opposite. The concept flourished in England and was incorporated into English common law, which was, of course, exported to the colonies, and was initially incorporated into American common law. [4]

The common law concepts of dower and curtesy have all but been abolished in the vast majority of states, favoring instead laws of descent and distribution, and embracing more modern concepts of individual ownership or community property [5]. Kentucky created limitations to dower and curtesy when it codified the concepts in 1942 and through subsequent amendments, but the concepts were largely left intact by the legislature in KRS 392.

KRS 392.020 and KRS 392.080 are clearly the most critical statutory provisions, as the former establishes the right as a statutory one and defines dower and curtesy, while the latter actually allows the surviving spouse to elect against the will of the decedent spouse and entitles them to a one-third interest in the real property of the decedent spouse.

So, why would dower or curtesy be problematic for modern couples? The fact that dower and curtesy allow the surviving spouse to elect against the decedent spouse's will creates potential problems for estate planning purposes, as the contemplated intent of the parties before death is potentially superseded by statute, and thus left to the whim of the surviving spouse.

Modern couples may enter marriage with individually owned property that they may want to leave to children from another marriage or someone outside of the marriage entirely; however, because of dower and curtesy, it means they have to either place the property into a trust or deal with it in an ante-nuptial agreement, or take some additional step in making sure their intent is not thwarted.

Likewise, in the instance that married couples become legally separated, but not actually divorced (they may lead entirely separate lives, functioning almost completely independently of each other, keeping separate accounts, separate residences, etc.), and regardless of the extent of separation during their lifetime and their intent to remain that way, their property rights remain linked.

A couple seeking a dissolution of marriage will often run into problems with dower and curtesy when either spouse attempts to buy a new home, as the soon to be ex will suddenly have an interest in the new property being purchased. At minimum, this requires the non-purchasing spouse to sign some of the legal documents at the closing, but at the worst, can create a particularly bad situation; unreasonably holding up closings, affecting interest rates, and generally adding stress and possible costs to divorce litigation.

Another, possibly less common issue, arises during means testing of certain state and/or Federal programs. In certain circumstances, one spouse may qualify for various programs by gifting or disclaiming interest in certain property during their lifetime. This passes the burden of that individual's care on to society as a whole, while allowing the other spouse to retain and use the property during that spouse's lifetime and then allows the property to be passed on to whomever the couple had intended.

What happens though, when the non-qualifying, owner spouse predeceases the non-owner spouse? Unless there are some indicia that dower or curtesy has being preemptively waived, it seems to expose those assets to means testing all over again. What if the surviving spouse is not competent? If these issues haven't been addressed, it might mean squabbling with guardians or conservators for assets that may actually end up ultimately being forfeited.

So, at a minimum, this antique concept can confuse lending underwriters, as it doesn't fit neatly on a checklist, but as you can see, a common law principal that once served to protect and provide for spouses, who either couldn't or didn't own property, can create real headaches for modern couples. When drafting documents, attorneys must be mindful of the effect dower and curtesy may have on the intent of the parties involved.

Edward II (Edward the Second, K. o. (1310). Year Books of Edward II. InVolume 3.

Ernest Cooke, J. a. (1998). North America in Colonial Times, Volume 3. Simon and Schuster.

Henry Campbell Black, M. e. (1991). Black's Law Dictionary, Abridged Sixth Edition. St. Paul: West Publishing Co.

Marital Property laws - Information on the law about Marital Property. (n.d.). Retrieved June 22, 2011, from jrank.org: http://law.jrank.org/pages/11839/Marital-Property.html

Scott Fetzer Co. (2011). World Book Encyclopedia. In Volume 5 (p. 316). Chicago: World Book, Inc.

[1] (Henry Campbell Black, 1991)

[2] (Edward II (Edward the Second, 1310)

[3] (Ernest Cooke, 1998)

[4] (Scott Fetzer Co., 2011)

[5] (Marital Property laws - Information on the law about Marital Property)

© 2020 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume II, Number 209


About this Author

Christopher A. Richardson, McBrayer Law Firm, Real Estate Attorney

Mr. Richardson was admitted to the Kentucky Bar in 2002, after graduating from the University Of Dayton School of Law in 2001. His practice has been concentrated primarily in real estate, where he is experienced in residential and commercial closing transactions, landlord/tenant relations, and mortgage lien enforcement/foreclosure. Mr. Richardson has closed enumerable secondary market and portfolio residential real estate transactions and his commercial practice ranges from short-term collateralized financing and construction lending to development revolving lines of credit....