The History of Marital Rights to the Spouse’s Estate


The issue of the rights of a married person to claim a share of the estate of a deceased spouse contrary to the terms of the deceased spouse’s Will and other estate planning documents is a fascinating historical study of evolving law which is little understood by members of the public.

The earliest forms of marital rights in Maine were the concepts of “dower” and “curtesy” which had emerged from the English common law and became part of the law of Maine when the State was formed from Massachusetts in 1820.

At common law, a husband and wife were considered to be one person, and, although the marital unit was described as being “two bodies with one mind,” the mind was that of the husband who solely controlled the marital estate. At common law, a married woman essentially had no legal capacity to own or acquire property in her own right.

Until the enactment of the Married Women’s Property Acts in Maine in 1844 and 1847, married women were not entitled to own property separate from their husbands. The husband, essentially, had full control of the marital estate.

If a woman married, her husband became entitled to the exclusive possession and control of all of the woman’s property until the marriage was dissolved by death or divorce. If a child were to be born of the marriage, the husband acquired an additional right to a life estate in the property brought by the wife to the marriage which was referred to as the right of curtesy.

The right of dower was available to a surviving widow and essentially assured that the widow would be, at a minimum, entitled to a life estate in 1/3 of the lands of her husband acquired at any time during the marriage. During the husband’s life time the right of dower was considered to be “inchoate” and, at death, the dower right became “consummate” and the widow became a “dowager” who was entitled to a dower right.

The husband could not defeat the widow’s dower right by transferring property away during his lifetime unless the wife formally released her dower right in the deed of conveyance.

The widow’s share was not solely for the protection of the widow. Much of the early case law addresses the need for the widow’s share as a protection for the State and local towns as being a means that the “poor widow” would not become a “public charge” to be maintained by local governments under the Poor Relief laws.

The law of dower and curtesy persisted in Maine until 1896 when a new concept of a spousal share was enacted by statute. Dower and curtesy were abolished and replaced by a “statutory share” which was available to both a widow and a widower.

The new concept of a statutory share essentially provided that, instead of a life estate, a husband and wife would each be entitled to a 1/3 share in fee of all properties owned by each during the marriage unless the other spouse “joined and released” his or her marital rights in the deed of conveyance.

Under this statutory scheme, the “spousal share” attached to specific properties or parcels of land. As a young pup lawyer in Maine in the 1970s, I recall the need to carefully review deeds of conveyance to ascertain the marital status of the record title holder and to verify whether or not the spouse had “joined and released” all spousal rights in property.

Although the “spousal share” legislation did provide broader protections for a surviving spouse, the legislation and case law still included a theme of protecting state and local governments from having to bear the support of the widow (or widower) as a public charge. Part of the motivation of enacting such laws would be to assure that the widow (or widower) would be able to be supported by the properties of the deceased spouse.

The “spousal share” legislation, however, turned out to be an imperfect way of protecting the spouse and the State. Estate planning concepts involving the use of non-probate assets such as joint ownership, life insurance, and trusts emerged which made it possible for a spouse to circumvent the marital rights laws. As a law student in the 1970s, I well recall my professors touting the revocable trust as a mechanism for avoiding and evading the grasping hands of the greedy spouse.

In 1979, Maine adopted the Uniform Probate Code which became effective on July 1, 1981 which completely restructured the traditional approach to spousal rights in the estate of a decedent.

Under the approach of the Uniform Probate Code, a surviving spouse (and, in some jurisdictions, a qualified domestic partner) has the right to reject the provisions of the decedent’s Will and claim a statutory one-third share of the decedent’s estate.
The Maine statute governing the elective one-third share is appears in 18-A M.R.S.A. Section 2-201 to 2-207.