Legal Rights of Single Women, Married Women, Widows and Genealogy
Keep in mind that there was a time when women were treated more like property than individuals. Women had few rights and married women had even fewer rights that unmarried women or widows.
The following is taken from an excellent website about wills, probate, women and the law, deeds, etc in colonial times http://www.genfiles.com/.
Unmarried women had many of the same rights as men, the principal exceptions being the right to vote, hold office, and serve on juries. Unmarried women (including widows) who had reached the age of majority had the right to sue in court, enter into contracts, buy or sell land or other property, make a will, or to be a guardian to a minor. Unmarried women aged 17 or more could also act as an executrix of a will or administratrix of an intestate estate. Women aged 12 or more could make a will (bequeathing personal property only), witness deeds or contracts, and testify in court – though it is rare to find such a record for minor women. The appearance of a woman in any of these records is a nearly certain indication that they were unmarried.
Once a woman married, or a widow remarried, her legal identity essentially disappeared. The traditional English concept of marriage was a corporate one – that is, the married couple were viewed as a single entity with the husband being the legal head of the entity. (That is, by the way, the reason why widows were called “relicts” of the entity.) Blackstone puts it succinctly: “By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”
Because a wife did not exist as a separate legal entity, we will not find a married woman engaging in legal actions except for a few special situations like criminal prosecutions, releasing dower, or acting as her husband’s attorney. Obviously, no one would execute a deed, lease, loan, or other contract with a married woman, for that would recognize her as a separate person. To genealogists, the records of most interest are related to property and estates.
Generally speaking, a wife could not acquire or own real or personal property. Her husband, as the head of the entity, owned whatever was his wife’s. Any property she brought into the marriage, or which she inherited during the marriage, were immediately vested in the married couple and therefore became her husband’s for all practical purposes. A husband’s will could bequeath property to his wife, for it would not take effect until his death ended the marriage and she again became a separate legal entity. Thus, a married woman lost the right to separately buy property, make a contract, sue or be sued in court, or make a will without the explicit consent of her husband. Nor could she act as an executrix or administratrix separately from her husband. If we see a woman performing one of these actions we can be nearly certain she was unmarried.
It follows that a woman could not acquire her own separate personal property during the marriage, apart from personal paraphernalia. A parent could bequeath personal property to a married woman, but that property was automatically titled to the married couple. That is why we often see a father’s will leaving the use of personal property to a married daughter, with title to be vested in her children and delivered after her death. If the property were bequeathed outright to the daughter, her husband would have ownership of it and could sell it or leave it in his own will to whomever he chose. By “personal property” we mean livestock, crops, leases, money, farm and household goods, and (depending on the colony and timing) perhaps slaves. Incidental personal paraphernalia like clothing, jewelry and some household goods were, however, usually considered to be owned separately by the wife.
There were some exceptions to this common-law rule. Certain intangible property brought into the marriage which were not actually possessed in a tangible form during the marriage, such as a longstanding unpaid debt, normally remained the wife’s in her widowhood. The second common exception was property covered by prenuptial agreements, marital settlements, or trusts. Wealthy women, both single and widowed, could use prenuptial agreements to retain their interest in separately-owned property during a marriage. And wealthy parents sometimes established what amounted to trusts for their daughters.
A widow received a one-third interest in her deceased husband’s personal property (one-half if there were no children).
Real property (that is, land) was treated somewhat differently. If a woman entered the marriage owning land, or acquired it by inheritance during the marriage, her husband acquired a life interest in her land. In essence, the title was held in a sort of joint tenancy. The husband could sell her land as if it was his own, but could not devise it in his will as long as his wife was alive. If the husband died first, such land reverted to the wife because title never transferred. If the wife died first, the land became the husband’s to do with as he wished. Real property acquired by the husband either before or during a marriage was also his to dispose of by deed or will. The wife, however, had a dower interest in the land for as long as she lived. This dower interest amounted to a one-third interest in the income produced by the land – for instance, rental income or income from timber or crops. The wife retained this lifetime right until she either died or voluntarily relinquished it. She could not sell her dower interest, nor dispose of it in a will, for it was a life interest only. If the husband sold the land without the consent of the wife, or devised it in a will, the wife retained her dower interest. Naturally, a prudent buyer would insist on the woman’s relinquishment of her dower interest in order to obtain a clear title.
A married woman also lost the right to sue in court, except jointly with her husband or in his name. If she married in the midst of an estate administration, she lost her identity as a separate person and the new couple became the responsible party. The new husband did not, of course, assume any liability for the debts of the former husband, which were secured by the estate. And the widow’s share of the residual estate of her dead husband was vested in her new husband.
Widows regained the rights of unmarried women during the period of their widowhood. That is, a widow could make a will, buy or sell property, act as a guardian, sue or be sued, or be an executrix or administratrix. If the widow owned personal property, she could bequeath it in a will. Unless explicitly given land in a will, widows had only the dower life interest in their late husband's real property, which could not be devised to her children or sold.
It is worth pointing out that a widow’s children were legally “orphans”, whether she was alive or not. A widow with children had no legal right to choose the guardians of her minor children. If sufficiently poor, she could not prevent her minor children from being bound out.
Note that last sentence about children being “bound out.” That term is found often in old court records. John Sparks on the East Ky Williams discussion group at http://groups.yahoo.com/group/ekywilliams/ made the following comment in message 2479, posted on Mar 23, 2005:
Well, here I go on the soapbox again.....I'm sorry to say it but if you look very much through those Floyd County records you'll see that the richer landowners of the county were about as corrupt and unscrupulous as could be about acquiring underage bondservants, which were the equivalent of white slavery. They'd use any excuse (poverty of the parents, alleged illegitimacy of the child, whatever) if they wanted some free help, and just call the parents to appear in court to "give cause why their children shall not be bound out according to law." And the old saying "his luck's about like a bound-boy at an ***-kicking" didn't just materialize out of thin air. There are a few cases in the Floyd County records where parents tried to press charges against those who had their children bound, on the grounds of mistreatment, and without exception every one was quashed. So for whatever reason this particular unfortunate case transpired, you can't rule out the possibility that some more well to do woman in the area simply wanted a maid or hired girl or some rich planter wanted one or more free farm laborers. Oh well. Man's inhumanity to man makes countless thousands mourn, said Burns.
You also read about about the dower rights of the wife. Someone buying property from a married couple also wanted the wife to sign the deed to prove she was giving up her one third dower right. Kentucky had a law that required a wife to be taken “separate and apart from her husband” during a deed transaction to make sure she understood what was happening and that she agreed to the sale. The following is another comment from John Sparks in message 868, posted on Jul 29, 2004 in response to a statement that my 6th Great Grandparents, Edward and Jemima Williams were separated and living apart.
Uhm......I declare I don't wish to offend anybody, but y'all mind if I put two cents' worth in on the question of this Clark County deed too? I'd seen Williams genealogists and some family history books say that Edward and Jemima Williams were estranged. Is this the reason, the clause in this deed about Jemima Williams being "separated and apart from her husband," agreeing to the land sale? If so, I respectfully submit that this cannot be used as evidence to bolster the claim. The confusion seems to have been caused by an old and obscure, but very good and generous, point of early Kentucky law, in effect at this time period and up until after the Civil War. In any land sale involving property jointly owned by a husband and wife, county court clerks were required, literally by law, to take the wife aside -- "separate and apart from her husband," just as this deed and hundreds of others of the same time period specify -- and explain the details of the land transaction to her privately. If the wife still agreed to the land sale after the clerk's explanation of the matter to her, the sale could go through; if not, it was stopped. This was in fact a most generous and liberal law, considering that in the early days women had pitifully few legal rights of their own, but sadly, it was also a concession to the fact that most Kentucky women in this time period and many years afterward, were illiterate. Its purpose was to prevent land sales that involved a husband's lying to or deception of his wife. But as I said, you cannot use the writing of an old Kentucky deed like this to infer that Jemima and Edward Williams were estranged. The Clark County court clerk was just doing his job.
© Bobby Daniel