What is Curtesy?

Curtesy is a common law right of a husband to the estate and property of his deceased wife. Also known as statutory share, the rights apply to the man if a child was born during the marriage.

Key Takeaways

  • Curtesy is a husband's right to the estate and property of his deceased wife, if a child was born when they were married.
  • The rights for surviving male and female spouses differed earlier, but those differences have been abolished in most states.

Understanding Curtesy

When a man's spouse dies, he becomes the beneficiary of her assets. For the right of curtesy to be established, the couple must have borne a child during the time of their marriage. The child must be eligible to inherit his mother's estate upon his or her maturity. The husband who inherits the estate may use it until his death. However, he may not sell or transfer its ownership to any person other than this child.

The practice of curtesy originated in England's common law. A husband was entitled to the "rents and profits, together with the use and enjoyment, of all the realty" that his wife owned or was expected to own after marriage. However, he could claim his rights on property until after a child was born to them. Thereafter, the estate was measured only by the husband's life.

Curtesy was first introduced in America during the 17th century. Thereafter, it gained rapid currency as part of common law in the 18th and 19th centuries.The second half of the 19th century proved to be a turning point in curtesy laws. Passage of Married Women's Property Acts in various U.S. states and elsewhere led to changes in curtesy laws.

Origins of Curtesy: Common Law

Curtesy and dower rights were different in most states earlier, but those differences have been abolished in favor of a common set of rights for surviving spouses, regardless of sex. That said, many states still have laws on the books that define dower and curtesy rights. Dower is a common law that entitles a widow to a portion of her husband's estate in the absence of a will. The provision of dower allows the wife to provide for herself and any children born during the marriage. In most circumstances, the widow is granted up to one-third interest in her husband's assets.

Kentucky's statute, for example, on curtesy and dower states: "After the death of the husband or wife intestate, the survivor shall have an estate in fee of one-half (1/2) of the surplus real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple at the time of death, and shall have an estate for his or her life in one-third (1/3) of any real estate of which the other spouse or anyone for the use of the other spouse, was seized of an estate in fee simple during the coverture but not at the time of death, unless the survivor's right to such interest has been barred, forfeited or relinquished. The survivor shall also have an absolute estate in one-half (1/2) of the surplus personalty left by the decedent. Unless the context otherwise requires, any reference in the statutes of this state to 'dower' or 'curtesy' shall be deemed to refer to the surviving spouse's interest created by this section."

Common law is a body of unwritten laws based on precedents established by the courts. Common law influences the decision-making process in novel cases where the outcome cannot be determined based on existing statutes. The U.S. common law system evolved from a pre-colonial tradition in England, which spread to North America and other continents during the colonial period. Civil law is a comprehensive, codified set of legal statutes created by legislators; some of these laws are based on common law. Judges may use common law in deciding cases where there is no applicable civil law.