Unless you have the occasion to work with residential real property on a regular basis, it might not occur to you that dower or curtesy even exist. People generally only encounter it when they are selling or refinancing a home, and then it is just a matter of a few signatures. However, these seemingly innocuous statutory provisions can create problems for modern married couples.

     What are dower and curtesy? Simply put, dower is a surviving wife's interest in her late husband's estate, and curtesy is a surviving husband's interest in his late wife's estate. So, rights in property owned by another. With that said, they can be described as inchoate rights, or non-vested rights, as the interest does not vest until the death of the owner spouse.[1] In case your eyelids were not heavy enough, dower and curtesy are not currently vested interests, but future expectancy interests or contingent remainders.

     What exactly does that mean? It means that dower and curtesy obviously require that the couple be married and the owner spouse pre-decease the non-owner spouse. This means divorce and death of the non-owner spouse defeat dower and curtesy. It also means that property titled in joint survivorship is not subject to dower and curtesy while the joint tenants are all alive, as the property vests in the surviving party(ies) by operation of law and does not enter the estate of the decedent party.

     Why do we have such a thing and where did this come from? Originally created and intended for the benefit of widows, the idea for dower has been around a long, long time, as the concept dates back to at least the middle ages.[2] Since marriage in the western world traditionally meant that the wife gave up all legal identity, and thus, she could not own property, dower was created as a security for the benefit of a woman who may survive her husband.[3] In essence, it gave the wife some protection during the marriage, as her husband could not convey his real property without her permission. Curtesy's origins are a bit shakier, the effect is the same, but opposite. The concept flourished in England and was incorporated into English common law, which was, of course, exported to the colonies, and was initially incorporated into American common law.[4]

     The common law concepts of dower and curtesy have all but been abolished in the vast majority of states, favoring instead laws of descent and distribution, and embracing more modern concepts of individual ownership or community property[5]. Kentucky created limitations to dower and curtesy when it codified the concepts in 1942 and through subsequent amendments, but the concepts were largely left intact by the legislature in KRS 392.

     KRS 392.020 and KRS 392.080 are clearly the most critical statutory provisions, as the former establishes the right as a statutory one and defines dower and curtesy, while the latter actually allows the surviving spouse to elect against the will of the decedent spouse and entitles them to a one-third interest in the real property of the decedent spouse.  (READ FULL ARTICLE)