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Married Women's Property Laws

During the nineteenth century, states began enacting common law principles affecting the property rights of married women. Married women's property acts differ in language, and their dates of passage span many years. One of the first was enacted by Connecticut in 1809, allowing women to write wills. The majority of states passed similar statutes in the 1850s.29 Passed in 1848, New York's Married Women's Property Act was used by other states as a model:

AN ACT for the effectual protection of the property of married women.

Passed April 7, 1848.

The People of the State of New York, represented in Senate and Assembly do enact as follows:

Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.

Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.

Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.30

Before the Civil War, married women's property laws were concerned with equity procedures, focusing on the appropriate pleadings a wife should use to file a suit but not altering a husband's privileges granted by prior common law principles. After the Civil War, laws were concerned with equalizing property relations between husband and wife. As Joan Hoff-Wilson concludes in Law, Gender, and Injustice (1991), these laws “ranged from the simple ability of wives to write wills with or without their husbands' consent, to granting feme sole status to abandoned women, to allowing women some control over their own wages, to establishing separate estates for women, to protecting land inherited by widows from their husbands' creditors, to allowing widows legal access to their husbands' personal estates.”31

The Homestead Act of 1862 demonstrates that the federal government did not make gender one of the criteria for homestead ownership, and this concept was adopted by several western states as well:

Sec. 1 . . . head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, . . . shall, from, and after the first January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents, or less, per acre; . . . .

Sec. 2: And be it further enacted. . . . upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family. . . .32

At the turn of the twentieth century, it was the effectiveness rather than the language of the law that diminished the rights of females. Some state legislatures began enacting laws that recognized women's separate and inherited estates as part of family income, granting creditors the right to claim women's property to pay family debts. As estates, trusts, and succession laws were passed, the rights of dower were abolished. Even after these laws had been repealed, many states kept portions of the older laws. For example, intestate succession (succession without a will) generally allowed a widow to take one-third of the husband's estate as earlier rights of dower had specified.

Spain and Mexico, civil law countries, influenced the way property laws developed in the western United States. Early community property legislation was enacted in this region. One of the earliest mentions of the distinction between the wife's separate property and common property is in the California Constitution of 1849: Section 14: “All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property, as to that held in common with her husband.”33

Although the states passed legislation naming marital property as community property, husbands were the ones who managed and disposed of the property. Only if the husband died was the wife allowed to manage the property, as this 1879 Texas law illustrates:

Art. 2181. The surviving wife may retain the exclusive management, control and disposition of the community property of herself and her deceased husband in the same manner, and subject to the same rights, rules and regulations as provided in the case of a surviving husband, until she may marry again. . . . .

Art. 2852. All property acquired by either husband or wife during the marriage except that which is acquired by gift, devise or descent shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only.34


Blackstone, William. Commentaries on the Laws of England. Oxford, 1803; reprint, 1967 (KF385 .B55 1967). This multivolume treatise, a standard for the study of British and early American law, should be consulted by any researcher who is interested in colonial law. It outlines and summarizes the common law of England.

Chused, Richard. “Married Women's Property Law, 1800-1850.” Georgetown Law Journal 71 (1983): 1359. A law journal article that gives a good overview of this group of laws; it suggests locations of relevant collections and provides passage dates and statistics on the impact of legislation.

Hoff-Wilson, Joan. Law, Gender, and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991 (KF4758 .H64 1990).

Laws Respecting Women. London: St. Paul's Church-Yard, 1777 [Law E Treat ‘Laws’] {LLRBR}. Chronicling the laws affecting women in Great Britain, this treatise provides an eighteenth-century perspective. Interestingly, it presents some issues that society today would view as modern, for instance, the monetary payment a wife should receive if she and her husband agree to live separately.

Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1986 (KF524 .S24 1986). An excellent source for studying property laws in Massachusetts, Connecticut, New York, Pennsylvania, Maryland, Virginia, and South Carolina and their effect on women during the period 1750-1830, this overview addresses the impact these laws had on the social structure of the colonies.

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