Familiarize yourself with women's property rights

Modern-day genealogists often find it incomprehensible that for periods of history, married women couldn't make wills. This oddity was ruled by a legal concept called coverture.

A single woman was a feme sole . Legally she could buy and sell property, and she could make a will to leave that property to persons of her choice. But when a woman married, she became a feme covert — her identity and her right to own property merged into that of her husband. Legally she ceased to exist.

Since she didn't exist, she couldn't own property, and if she couldn't own property, she had nothing to leave in a will. It makes sense. Sort of.

Understanding this concept and knowing when it applied to a particular place are important. Initially the concept was in place in every state. In 1809, Connecticut led the way in passing the Married Women's Property Acts, giving married women equal legal right with single women. Throughout the 19th century all states gradually passed similar laws. To learn more about this concept, go to http://memory.loc.gov/ammem/awhhtml/awlaw3/property_law.html.

A researcher must determine when this act was passed in a given state in order determine its impact on specific ancestors. The easiest way to find out when a specific state changed its laws is to put the terms "married women's property acts (name a state)" into a search engine such as Google.

The significance to researchers is this: If we find a woman making a will in a state that has not passed the property act, it indicates the woman wasn't married. But if we know the woman was married at some point, we have a clue to use in determining when the woman's husband died.

The whole concept of coverture robbed women of their identities and left some of them defenseless at the hands of uncaring or unscrupulous husbands. In an effort to counter those ill effects, laws created dower.

Dower gave a woman a third interest for life in all real estate her husband owned. Some states applied dower rights to any property a man acquired during the marriage, while others applied it only to what a man owned at his death.

In states where dower applied to all property acquired during marriage, the woman was asked to waive her dower rights every time her husband sold a piece of property. The idea was to prevent him from selling all his land and leaving her penniless at his death.

Researchers will find these dower waivers not in the probate file but in deed books, following the recording of a property sale. The waiver will state that an officer of the court had privately examined the wife, who willingly relinquished her future dower rights to the land.

Many think this concept was laughable because the poor woman had to go home and remain under the thumb of her husband. How free was she to refuse to relinquish the claim?

It wasn't uncommon for a woman to come forward at her husband's death and demand her rights to land because an official had failed to get or record her waiver. In such cases, the unfortunate purchaser had to ante up a third of the property to the widow.

When looking at an intestate probate file, researchers should find an entry where the widow actually asked the court to grant her dower rights. The court then appointed a committee of men from the community to investigate and determine all the property the husband had owned at the time of his death. This is when it also would come to light if the husband had sold land without the wife's knowledge or agreement.

The committee would evaluate the value and acreage of the land and recommend to the court the specific acreage the widow was to get. Included in the widow's dower would be the acreage on which her home physically stood.

Dower comes into play when a man dies without a will. If he had a will, he could leave his wife what he specifically wanted her to have. If he gave her less than a third of his estate, however, she could refuse the gift and demand her dower rights.

It is important to remember that dower was an estate for life — the widow didn't own the land outright or in fee simple. That means she couldn't sell it and she couldn't will it. When she died, it would be distributed to her husband's heirs as the law designated.

When we research in deed books and find where a man's children are selling plots of his land many years after his death, this usually is a clue that the widow has died and the children are free to sell their inheritances that had been tied up in the dower.

In places and times where there were no death certificates and no granite tombstones, this may be the best indirect evidence of the widow's death.

Along with the selling of their mother's dower lands, the children also may have sold their own inheritances and migrated to a new area. Concern for a widowed mother often was the only thing that had kept the children on nearby farms. At her death they felt free to explore greener pastures in the expanding frontier.

Next week we'll explore a variety of documents in probate files.

Shane Bell of the National Archives will speak from 10 a.m. to noon Saturday in the auditorium at the John F. Germany Library, 900 Ashley Drive, Tampa. Bell will talk about the 1940 census that will be released to the public next year. It was the first census to have a short and long form. Bell will talk about how the information was collected and digitized, and how it reflects the history of that period. For additional information contact EvansK@hillsboroughcounty.org.