Duhaime's Law Dictionary


Dower Definition:

A widow's life estate interest in her husband's real property if he died intestate.

Related Terms: Erunt animae duae in carne una, Primogeniture, Curtesy, Widow's Quarantine, Testamentary Freedom, Devise

A widow's interest (sometimes just a life estate) in real property owned by her deceased husband.

At common law, "dower" is a right which only vests as of the death of the husband, and was limited to one-third of the husband's real property.

Historically, this referred to a husband's obligation to support his wife for her lifetime and in heraldic vocabulary, the word dowager when placed in front of a woman's name meant that she was a widower living off a dower.

Although similar, the term differs from dowry, which is the historic obligation on the part of a bride to gift to her prospective husband a set of asset(s); as a pre-payment on the costs of her support for her life.

Blackstone described the state of the entitlement in the common law in his era (1750s) as being "the third part of all the lands whereof (the husband) was seized ... to hold to herself during the term of her natural life."

In 1835, England passed a Dower Act, to clarify the extent of these real property rights which, from that point on it was essentially sucked dry of substantial remedial benefit towards widows by excluding any property that the husband disposed of by will!

England completely did away with dower rights in 1925.

"Dower law" became a robust field of family law in the last century as it represented the widow's primary entitlement, an entitlement she could lose through misconduct such as her adultery or divorce. Husbands found ways around it as well such as vesting their land to a corporation. With often substantial amounts of money at stake, the very marriage of the intestate with the dower claimant was tested. A whole discrete expertise existed - attorneys that were experienced if not successful at having marriages overturned, likely inspired by the fine work done by the attorneys of King Henry VIII (1491-1547) in having his marriages overturned for a variety of reasons. There was even a Latin "app for that": Ubi nullum matrimonium, ibi nulla dos - where there is no marriage, there is no dower.

The husband's reciprocal right was called curtesy except that (surprise!) curtesy, if applicable, was not limited to 33% of the wife's real property.

This common law creature did not automatically cross the Atlantic Ocean with the English explorers of the 1600s.

For example, several Canadian provinces drafted and implemented their own Dower Act, such as the Alberta statute of 1917 (SA 1917 Ch. 14), and eventually repealed them.

Again, in Canada, the Provinces moved to restore the remedial policy behind dower and allowed a spouse to put a charge against land under "homestead" legislation and, in the event of the husband dying intestate, of a life-estate to the wife.

In intestate situations, where a spouse survives with children, that spouse often gets a cash portion off the top of the estate (which Ontario's Succession Law Reform Act appropriately calls a "preferential share").

For example, at time of writing (August 2007), that amount was $40,000 in Alberta, and $200,000 in Ontario. Contrary to the traditional definition of "dower", this is not only for female spouses.

For example:

"Abolition of dower... No widow is entitled to dower out of land of which her deceased  husband died wholly or partially intestate, or in land which was absolutely disposed of by her husband in his lifetime or by his will."1

However, at §96 circa 2013, in an intestate, the "spousal home" must be held "... in trust for an estate for the life of the surviving spouse, or so long as the surviving spouse wishes to retain the estate for life....", although such things are subject as are all statutes to amendment by a legislative assembly.

Note that "spouse" is not gender-specific.

In one Ontario case (see references below), the deceased said, in his will, that his wife "receives her dower of one-third of my estate".

The Court noted the "a very prevalent idea that a wife's dower is a right to one-third of her husband's property" but that was not an accurate reflection of the law of dower, which extends rights over a deceased husband's real property only. In any event, given the testator's wording, the wife received a one-third of all the estate property.

REFERENCES:

  • Blackstone, William, Commentaries on the Laws of England, Volume 2, page 129
  • Estate of Obed Manuel, 12 LOR 286 [1906]
  • NOTE 1: British Columbia Estate Administration Act, RSBC 1996 Ch. 122, §95(1)
  • Tayler, Thomas, The Law Glossary (London: Lewis & Blood, 1856), page 118 and 552.

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