3.96 Curtesy


In General

Curtesy is the common-law right of a husband, on his wife's death, to a life estate in his wife's property, provided there has been lawful issue of the marriage born alive who might have been capable of inheriting the estate.

Upon the birth of inheritable issue, the man obtained an estate measured by his own life in all of the wife's freehold estate of inheritance. This was the estate of "curtesy initiate," which merely changed its name to the estate of "curtesy consummate" upon the wife's death.

Nowadays, because the superior alternative rights in the estate of a deceased wife accorded by statute to the surviving husband, curtesy is of much less importance than formerly, and in many of the states it has been abolished or modified by statutes or constitutional provisions. The institution of curtesy has completely ceased to be a source of estates for life in a large majority of states and only an indirect or infrequent source of life estates in a few states.

The following jurisdictions generally recognize curtesy, dower or similar survivor rights of a spouse (in addition to possible homestead rights discussed elsewhere) in property conveyed for consideration by the other spouse without joinder or release by the survivor: Arkansas, District of Columbia, Iowa, Kentucky, Michigan [dower in favor of wife], Minnesota [only to land conveyed by other spouse on or after 1-1-75], Missouri [conveyance without consent deemed in fraud unless contrary shown], North Carolina, Ohio, Virginia, and West Virginia.

Other states, which previously recognized dower and curtesy rights, have abolished such rights, but the dower or curtesy rights may remain effective as to land owned by the other spouse during marriage at or before the time of the statutory abolition (states which have abolished dower and curtesy include Alabama [1-1-83, Colorado [1963], Georgia [dower abolished 1969], Hawaii [wife's dower extends to land owned during marriage before 7-1-77], Illinois [1-1-73], Maryland [eliminated as to estates of person dying on or after 1-1-70], Massachusetts [modified effective 1-1-66], Missouri [dower eliminated unless vested as of 1-1-56], New Hampshire [dower eliminated unless choate as of 8-10-71], New Jersey [5-28-80], New York [9-1-30], Oregon [ eliminated as to spouse dying after 6-30-70, Pennsylvania [6-17-78], Rhode Island [dower eliminated as to persons dying after 4-17-78], South Carolina [5-31-85], Tennessee [4-1-77].

Even where dower, curtesy or similar rights are not recognized, a conveyance to a third party by a spouse which is not made for valuable consideration may be ineffective as to the other spouses' survivor rights in the estate (which may by statute include such land).