I once got an email from a client that read, “The deed looks good, but you misspelled ‘courtesy.'” Actually, my spelling was correct, but before my client could sign the deed I had sent him, I obviously needed to explain a weird part of Arkansas estate law—the ancient legal doctrines of dower and curtesy.
In my experience, people generally think their will is the final arbiter of their estate. It turns out, that’s rarely the case. Arkansas law sometimes works to protect family members in ways that are counter to a decedent’s will. One example of such a policy is dower and curtesy. Dower and curtesy are both carryover legal doctrines from Medieval England. While they have been abolished in most states, they have not been abolished in Arkansas.
So what are dower and curtesy?
Generally, when a married person owns property at any time during the marriage (without regard to whether the property was first owned before the marriage), the married person’s spouse is vested with one or the other—dower for wives and curtesy for husbands. Your will could say, “My husband, Ralph, in these last years has been a lazy grouch, and I therefore give him nothing.”
But when you die, Ralph wouldn’t get nothing.
When you die, Ralph would have a dower interest in your land and, if you had no children or creditors would inherit one half of your real and personal property outright, regardless of what was otherwise stated your will. If you died with children, dirty Ralph would inherit one third of your personal property outright and would inherit a life estate in one-third of your real property.
And what is a life estate?
A life estate is the right to possess property during one’s lifetime, but it is not an ownership interest. If you have a life estate in land, you have a right to possess that land during your lifetime, but your will would have no control over what happened to the land upon your death. When you die, the land would go to whomever during your lifetime owned what the law calls a “remainder.” A remainder is a future interest in property that another person enjoys during their life as a life estate. Because the surviving spouse has dower or curtesy in only a third of the property, that means he or she would share possession of the property with whoever would own the other two thirds interest in the property.
The dower and curtesy interest is superior to most other legal interest in land. Supposing you die with creditors. Ordinarily, your property is fair game for creditors to pursue when the cash you die with is not sufficient to satisfy their claims. Not so however, for dower and curtesy. With the exception of debt that is secured by a mortgage on the property, dower and curtesy trump creditor’s claims.
Dower and curtesy collectively are but one of hundreds of counterintuitive components of Arkansas law. This is why I plead with people not to attempt their estate planning without a lawyer. You don’t know what you don’t know.