Women, Wills & Jointure

There was a time when a married woman didn’t legally exist during her marriage as essentially she and her husband were considered to be one legal person. This extended, with some protections, to testamentary rights over real estate, however once married her personal property became her husband’s. It was only with his permission that a wife could make a will leaving personal property – even if it had been hers before her marriage.

One aspect of English law that favoured Women exclusively was Dower. It was a provision by a husband or his family, to a wife for her support in the event that she should become a widow. It is based upon the Germanic practice of bridewealth which was paid to a bride’s family prior to the marriage; entering English law through the church it usually referred to the life interest in property given at any time during the marriage not just at the wedding.

In English law, dower was the right of a widow to a life estate in one-third of her husband’s property after his death, that unless ‘barred’, could apply to land which the husband had disposed of during his lifetime or by his will.

A widow could claim the amount owed to her from her husband’s heir by issuing a summons known as ‘de recto de dote’.

Unlike a bride’s dowry, a husband was not able to use the dower as the woman’s legal representative, (often one of her male relatives) was appointed trustee in order that it was not squandered. The dower could be used however she pleased.

English law favoured dower until the late 18th century, when the right to dower in a husband’s property was barred by legislation.

One of the reasons that legislation was passed was that it had become common for a wife to bar her right to dower in advance of her marriage by agreeing to take a jointure. Essentially this was a provision made by a husband for the support of his wife after his death. The term has its basis in medieval law, where a jointure was the wife’s interest in a joint tenancy between husband and wife.

Under this agreement a wife would take a share or life interest in her husband’s property, or an annuity. This often was the bargain that she struck to give up her right to dower in exchange for a jointure, which would usually be greater than a third of his property.

As society inches slowly toward equality thankfully it has been some time since married women lacked testamentary capacity. In many instances decisions in relationships are made by women. Perhaps it’s time that we make plans for our future by making a Will, putting in place an advance care directive, and power of attorney.While you are doing those things it is a good idea to evaluate your level of  income protection and life insurance.

 

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