Dower (not to be confused with dowry) and curtesy refer to the mandatory, minimum legal rights or ownership of a married spouse in their deceased spouse’s property upon the death of the deceased spouse.
Before state legislatures enacted laws to prevent the surviving spouse from being disinherited of all of the deceased spouse’s property, courts recognized these minimum ownership rights by the surviving spouse in the deceased spouse’s real property (real estate) and personal property (all property or belongings other than real estate). These laws or rights created by courts are known as common law or common law rights.
Dower
Dower is a surviving wife’s interest in her deceased husband’s property. Dower laws varied from state to state (they still exist in a few states) with the surviving wife being entitled to a dower interest of a certain percentage of her husband’s real property and a certain percentage of his personal property, for example—even if the husband tried to otherwise dispose of those portions of his property before he died or after he died (in his will).
Curtesy
Similarly, curtesy is a surviving husband’s interest in his deceased wife’s property. Curtesy laws varied from state to state (they still exist in a few states) with the surviving husband being entitled to a curtesy interest of a certain percentage of his wife’s real property and a certain percentage of her personal property, for example—even if the wife tried to otherwise dispose of those portions of her property before she died or after she died (in her will).
Elective Share Laws
Many states have abolished dower and curtesy in favor of “elective share” laws that allow the surviving spouse to take the property left to the surviving spouse in their spouse’s will, or the share that is provided by law—which is usually located in a state’s statutes—often in the probate or estates code. These elective share laws may guarantee the surviving spouse one-third to one-half of the deceased spouse’s real property and personal property. And in some states the elective share laws provide that the amount of the elective share depends on the length of the marriage.
But some states still have dower and curtesy laws, and in addition to limiting a deceased spouse’s transfer by will of all property to someone other than their surviving spouse, these legal rights may also prevent a spouse from selling or transferring all of the spouse’s property during the spouse’s lifetime if it might jeopardize the other spouse’s dower or curtesy rights—unless the other spouse agrees to the sale or transfer.
Waiver of Dower, Curtesy, or Elective Share Rights
Spouses may be allowed to waive their dower, curtesy, or elective share rights by signing a valid prenuptial or postnuptial agreement. Laws may vary from state to state regarding the type of document that is required to waive these rights.
Other Laws
Community property laws in community property states—and property that is titled in both spouses names in common law property states—may also affect a spouse’s ability to sell or transfer real or personal property during a spouse’s lifetime or upon death (by will).
In Texas, the concepts of dower and curtesy have been abolished and replaced with a modern statutory scheme for the protection of surviving spouses. Texas does not recognize dower or curtesy rights; instead, it follows community property laws and has elective share provisions under its Estates Code. Under Texas law, a surviving spouse is entitled to a share of the deceased spouse's estate, which can include both real and personal property. The elective share is designed to prevent disinheritance by ensuring that the surviving spouse receives a portion of the estate, regardless of the deceased spouse's will. The specific share that the surviving spouse is entitled to can depend on various factors, including the length of the marriage and the existence of children or other descendants. Additionally, spouses in Texas can waive their rights to the elective share through a valid prenuptial or postnuptial agreement. Community property laws in Texas also play a significant role in determining the distribution of property upon the death of a spouse, as property acquired during the marriage is generally considered jointly owned by both spouses.
