CURTESY
An estate to which a man is entitled by common law right on the death of his wife, in all the lands that his wife owned at any time during their marriage, provided a child is born of the marriage who could inherit the land.
COMMON LAW provided that upon marriage
a husband acquired a right, sometimes called a
freehold estate, to the use and profits of his
wife’s lands. His estate jure uxoris (Latin for “in
the right of the wife”) continued only during the
marriage and terminated upon the death of
either spouse or upon theirdivorce. At early
common law in England, an absolute DIVORCE
could be obtained only by an Act of Parliament.
Consequently, for practical purposes, the hus-
band acquired a right to the use and profit of the
land during the joint lives of the parties. This
estate was subject to sale or mortgage by the
husband and could be reached to satisfy the
claims of his creditors. The estate jure uxoris vir-
tually disappeared with the enactment of Mar-
ried Women’s Acts, which gave married women
a right to manage their own separate estates.
Pursuant to common law, upon the birth of
a child capable of inheriting the land, a husband
acquires a life estate, or property interest, the
duration of which is limited to the life of the
party holding it or to that of some other person,
in the lands his wife owns. This estate is desig-
nated as curtesy initiate, which replaces the hus-
band’s estate jure uxoris under early common
law. The husband can sell or mortgage the land,
and it can be reached to satisfy the claims of his
creditors.Upon the death of the wife, it becomes
curtesy consummate.
In some states, due to the Married Women’s
Acts, the birth of a child does not give the hus-
band a vested interest in his wife’s property.
Until the death of the wife, the husband has a
right of curtesy, which is not a present right, but
which might develop into a legally enforceable
right if not barred, extinguished, or divested.
This interest cannot be subjected to the claims of
the husband’s creditors.
The right of curtesy rests upon proof of a
legally recognized marriage, as distinguished
from a GOOD FAITH marriage or a de facto mar-
riage, one in which the parties live together as
HUSBAND AND WIFE, but the union has no legal
effect due to defects in form, such as an invalid
license. A VOIDABLE marriage, one that is valid
when entered into and that remains valid until
either party obtains a lawful court order dissolv-
ing the marital relationship, suffices for pur-
poses of curtesy if the marriage is not rendered
null before the right to the estate arises.
Curtesy has gradually lost much of its previ-
ous significance in the law. In some jurisdic-
tions, curtesy attaches only to the real estate that
the wife owns at death, rather than to the real
estate owned by the wife during the marriage. In
others, curtesy has been abolished and replaced
by a statutory elective share in the wife’s estate.
A few jurisdictions have enacted statutes that
embody the basic principles of common-law
curtesy but with some modification.
Common law provides that an absolute
divorce bars a claim of curtesy. A legal separa-
tion—sometimes called a divorce, or a mensa et
thoro “from bed and board”—does not termi-
nate the marital relationship. In the absence of
an express statute, such a divorce will not bar
curtesy. This is also true in regard to an inter-
locutory decree of divorce, a temporary, interim
order of the court.
Statutes in some states provide that curtesy
can be denied upon proof of certain types of
misconduct, such as ADULTERY, voluntary sex-
ual intercourse of a married person with a per-
son other than one’s spouse. Several states have
statutes preserving curtesy if a divorce or legal
separation was obtained because of the fault of the wife.
Statutes in many states provide that a murderer
is not entitled to property rights in the
estate of the victim. Some decisions apply these
statutes to cases involving curtesy. In other
states, these interests are barred upon the principle
that a person must not be permitted to profit
from his or her own wrong. In accordance with
this theory, a CONSTRUCTIVE TRUST will be
declared in favor of the heirs or devisees of the
deceased wife who is murdered by her husband.
CROSS-REFERENCES
Husband and Wife.
