The marital property system in British common law supported the interest of the patriarchal landed class to keep estates intact and under the control of a
single male. Under this system, a married woman was to be supported and maintained, but she was not entitled, by and large, to exercise the power of
ownership. Her property relationship to her husband was one of dependency. This is the marital property system that was adopted by the majority of
states in America.
Under this system, a woman ceased to be considered a separate legal person at the time of marriage. Husband and wife were considered one, and that
one was the husband. Except for clothes and ornaments, all personal property owned by the wife at the time of marriage or acquired thereafter, including
her earnings (if any), became the property of her husband.
In addition, a husband had the right of possession to all his wife’s lands during the marriage, including land acquired during the marriage. That right was
alienable by the husband and reachable by his creditors. The wife also had the duty of rendering services within the home. In exchange for all of this, and
a marriage vow to obey her husband, the wife received the benefit of the husband’s support and protection.
The wife’s previously held real and personal property came under the husband’s control upon marriage under what was termed an Estate by the Marital
Right. After the marriage and until issue was born of the marriage, the husband was entitled to the use and occupation of the wife’s land, as well as to the
rents and profits that resulted, so long as the marriage was not dissolved by divorce or death.
Once live children were born to the marriage, the husband’s estate in the land became one of Estate by Curtesy. Should he survive his wife, he would
enjoy use and benefit of the land for the duration of his life.
If a wife survived her husband, the control of her previously held property was returned to her. She also was entitled to dower, which amounted to onethird
of all property that her husband had owned at any time during the marriage. In addition, she could be a beneficiary of his will, because such a
bequest would not take effect until after his death, when she regained her legal existence as a single woman.
Joann M. Ross
See also: Class; Inheritance; Land and Real Estate; Landlords; Marriage and Divorce; Plantations; Tenant Farming; Widows
and Widowers.
Bibliography
Black’s Law Dictionary, 7th ed. Edited by Bryan A. Garner. St. Paul, MN: West Group, 1999.
Dukeminier, Jesse, and James E. Krier. Property. 4th ed. New York: Aspen Law & Business, 1998.
Freyfogel, Eric T. “Land Use and the Study of Early American History.” Yale Law Journal 94 (January 1985): 71742.
Gillon, Steven M. and Cathy D. Matson. The American Experiment: A History of the United States. Boston: Houghton Mifflin, 2002.
Middleton, Richard. Colonial America: A History, 15651776. 3rd ed. Oxford, UK: Blackwell, 2002.
Moynihan, Cornelius J. Introduction to the Law of Real Property: An Historical Background of the Common Law of Real Property and Its Modern Application. St. Paul,
MN: West Group, 1962.
Norton, Mary Beth, David M. Katzman, David B. Blight, Howard P. Chudacoff, Thomas G. Paterson, William M. Tuttle, Jr. and Paul D. Escott, eds. A People and a
Nation: A History of the United States. 6th ed. Boston: Houghton Mifflin, 2001.
New York City Property Rights within the Marital Relationship Photo Gallery
