Until the mid-19th century, married women were considered possessions of their husbands and had virtually no control over their money or property. Thanks to the women's rights movement, this all changed. Today, husbands and wives are seen as equals under the law, and property is shared between them.
As Nancy Woloch writes in her book Women and the American Experience, married females in 17th-century Britain and the British colonies had very few rights and were basically considered the property of their husbands. A married woman, or "feme covert," was unable to own property, bring suit, make contracts, or act as a legal individual. Under the concept of coverture, the husband and wife were seen as one person under the law, and the husband retained the rights of managing and dispensing their property as well as any money earned by the wife, and he alone had guardianship rights of their children.
Some groups of women did have more rights than others. Upper-class married women could inherit estates, manage family lands, and handle business affairs, especially in the absence of male relatives. Widows often managed lands or ran businesses that they inherited. Middle- and lower-class married women, however, had virtually no power or control over their own possessions.
One exception to the feme covert rule was in the instance of a prenuptial contract. All colonies accepted these contracts, but few couples signed them. Sometimes, parents of wealthy daughters insisted on a contract to keep family property in a trust for their daughter and her heirs (daughters had no control over trusted property, however). Widows often drew up prenuptial contracts before marrying again, but they had to obtain their new husband's consent in order to keep the property inherited from their first marriage through a contract.
Without a prenuptial contract, the property a woman brought to her marriage, if she had any, went under her husband's control or management--just as her personal property, earnings, and children belonged to him under common law, according to Woloch. This meant that a prodigal husband could waste his wife's inheritance, spend her earnings, and sell her jewelry and furniture, and she couldn't do anything about it.
In most colonies, a widow was assured of her dower right, or one-third of her husband's property if he died without a will. Husbands who did create wills could leave their wife more than one-third. However, a widow couldn't sell or bequeath the property to anyone else without permission from a court.
Early Women's Rights Movements
In the mid-1800s, a campaign began to redress the legal disadvantages of married women. Connecticut had started the trend in 1809 with a law that allowed women to create wills without their husband's consent. Separate estates, as stipulated in prenuptial contracts, became more common after the 1820s as a means to protect a woman's property from a husband's creditors, according to Woloch. Mississippi enacted the first Married Women's Property Law in 1839, which allowed for the transfer of slaves and other property from father to daughter to prevent the division of plantations among son-in-laws.
The Married Women's Property Act
In 1848, New York passed legislature that was used as a model by many other states. According to the Library of Congress (see Reference 2 for more info), this law had four major components:
• Property owned by a woman before marriage would remain under her control and could not be sold by her husband, nor could any profits from that property be used to pay his debts.
• Property obtained by a woman after marriage would remain under her control and could not be sold by her husband, but the profits from that property could be used to pay his debts.
• Property given to a married woman as a gift or inheritance would remain under her complete control.
• Prenuptial contracts would remain in force and must be honored after marriage.
The Movement Spreads
In 1860, New York passed another law that allowed married women the right to their own earnings. After the Civil War, more laws were passed throughout the United States to equalize property laws between men and women, according to the Library of Congress. Married women were soon allowed to write wills without their husband's consent and control their own wages. Abandoned wives were given feme sole status and allowed to control their own property and earnings. Due to the large number of widows left by the war, laws were needed to protect them from losing property to their husband's creditors as well as gain legal access to their late husbands' personal estates. By 1900, every state had passed laws giving married women substantial control over their own property.
Laws regarding marriage and property differ from state to state, but nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) operate under a doctrine of community property, which was created in the late 1800s and states that all property acquired after marriage, except for gifts or inheritances, is owned equally by the husband and wife, each retaining half of the value of the property. Accordingly, debts that are incurred by either party during the marriage are the responsibility of both the husband and the wife.
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