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Back to Inheritance Laws in the 19th and 20th Centuries

Summary

Inheritance in the United States is generally a matter of state law.  During the colonial period, the colonies adopted English inheritance law.  Following independence, most states enacted statutes that codified common law with some modifications to English law and procedure.  In the nineteenth century, with westward expansion, some territories entered the union as community-property states, adopting aspects of civil law.  Most states adopted legislation giving married women control over and power to devise property they had inherited.  Some differences are found between pre-1850 and post-1850 states concerning equality of widows’ and widowers’ intestacy rights.  Over the course of the twentieth century, widows came to be treated more equally in inheritance compared to widowers, and spouses came to be treated more favorably in intestacy compared to children. 

I.  Introduction

Inheritance in the United States is generally a matter of state law, and each of the fifty states (as well as the District of Columbia and the US territories) has its own history of the law of inheritance.  This discussion will provide a brief overview of highlights and general trends among these jurisdictions.[1]

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II.  Colonial Period

A discussion of the law of succession in the colonial period in America is necessary for an understanding of later developments. 

During the colonial period, the colonies adopted English inheritance law, largely replicating the mode of wealth transmission found there, including the power of a testator to dispose of real and personal property by will, subject to regulation by statute.[2]

As of 1720, while the colonies generally relied on common law with respect to inheritance, most had enacted statutes governing distribution of personalty, and had created procedures for probating wills and administrations (since they lacked ecclesiastical courts to handle probate like those in England).[3]

In some instances colonial legislatures passed statutes to alter common law on the descent of land, kin succession, and limitations on testamentary freedom.  A majority of colonies rejected primogeniture and passed statutes to allow younger sons and daughters to receive shares of an estate.[4]

As to the rights of widows, most colonies followed the contemporaneous English practice granting testators freedom to will personalty, although two states, Virginia and Maryland, allowed widows to claim a share of personalty notwithstanding the will.[5]

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III.  Postrevolutionary Period

In the period following separation from England, most states enacted statutes codifying common-law provisions while making some changes to English law and procedure.[6]

Most states abandoned primogeniture and provided statutes to address the division of land among children.  By 1800 in most states, sons and daughters received equal shares in real and personal property.[7]

Most states passed statutes providing for widows to receive cash sums in lieu of dower in the land, and statutes making explicit what a widow would receive upon renouncing her husband’s will.[8]

A few states’ statutes addressed the inheritance rights of illegitimate children.[9]

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IV.  Nineteenth Century

In the nineteenth century, as the US expanded westward, state laws on inheritance continued to evolve.  

Eight western territories, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington, entered the Union as community-property states.  Community-property states derived aspects of their inheritance laws from civil law.  Wives in community-property states automatically inherited one-half of community property—namely, that property acquired during the marriage and which neither spouse had received as part of an inheritance or gift.  However, in four of the community-property states, California, Idaho, Nevada, and New Mexico, if the wife died first, all community property went to her husband, whereas if he died first, she could only claim half, and he could bequeath his half to whomever he pleased.[10]

In the mid-nineteenth century, most states passed legislation giving married women rather than their husbands the ownership and control over all personal and real property they had inherited or been given.  Married women’s inheritances became separate property that they could bequeath as they wished.  As of the 1890s, there was a general acceptance in all areas of the country, in both community-property and common-law jurisdictions, that married women should have the power to devise and bequeath property they inherited.[11]

Differences are apparent between jurisdictions that entered the union before 1850 and those that entered thereafter.  The post-1850 jurisdictions tended to make equal the intestacy shares given to husband and wife, either by increasing widows’ shares to one-half or by reducing widowers’ percentage to a third.[12]  The post-1850 jurisdictions also replaced widows’ and widowers’ lifetime tenure in realty with fee-simple tenure.[13] The post-1850 jurisdictions also typically made personalty and realty more similar by eliminating doctrines such as dower and curtesy, and certain intestacy-share provisions that provided for lifetime property use rather than absolute ownership.[14]

It also became more difficult to disinherit a child in many states, as the number of states that passed laws requiring parents to state in their wills their specific intention to leave out a son or daughter increased significantly.[15]

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V.  Twentieth Century

The twentieth century saw significant changes in most states’ laws with respect to the equitable treatment of women in inheritance.

The trend begun in the nineteenth century of replacing spousal intestacy shares from lifetime tenure to fee-simple tenure continued.  By 1935, 60% of the states had made this change, and by 1982 all states had.[16]

Over the course of the twentieth century, the proportion of a decedent’s estate that under intestacy went to the spouse rather than to children or others increased in many common-law jurisdictions.  While in 1935, over 90% of common-law states offered spousal shares lower than what would be awarded in community-property jurisdictions, by 1983, such jurisdictions were in the minority.[17]

The four community-property jurisdictions mentioned above that initially treated widows differently than widowers eventually amended their laws to treat widows and widowers the same.[18]

Another trend in the law among most American jurisdictions during the twentieth century was to treat spouses relatively more favorably than children and other relatives in intestacy statutes.[19]

By the end of the twentieth century, with respect to the right to devise property by will, while protection of children from disinheritance was “almost nonexistent,”[20] there was a diverse array of spousal protections that varied by jurisdiction:

[C]ommon law dower has been substantially retained by fifteen states; statutory dower, by which the widow is more generously allowed to take a fee interest rather than a life interest, exists in eight jurisdictions; ten states have done away with dower altogether and have created in its place an inchoate, statutory interest in the other spouse’s property which is protected during coverture by the husband’s inability to convey unencumbered title by his sole act; and the remaining states do not give the wife an inchoate interest during coverture but limit her instead to a forced share in whatever property the husband leaves in his estate at death.  The present state of the law represents a jungle, with hardly two states to be found that are exactly alike, and there exists in reality fifty different schemes most of which, when analyzed, are not built upon a single adequate interest given the surviving spouse; but instead give her a bit of homestead, a bit of widow’s allowance, and in addition a bit of dower or some statutory substitute therefor.[21] 

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Prepared by Luis Acosta
Senior Legal Information Analyst
March 2015


[1] A comprehensive treatment of the history of the law of inheritance throughout the US is Carole Shammas, Marylynn Salmon & Michel Dahlin, Inheritance in America from Colonial Times to the Present (1987), bibliographic information at http://www.worldcat.org/oclc/14134770.  What follows is mostly derived from that work.  Other relevant titles include Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (2009), bibliographic information at http://www.worldcat.org/oclc/259716073, which discusses changes in aspects of the law of succession within their social context, and Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (2012), bibliographic information at http://www.worldcat.org/oclc/774394439, which focuses on the effect of inheritance law on elder care and family life in the US.

[2] Shammas, Salmon & Dahlin, supra note 1, at 23, 38–39.

[3] Id. at 31.

[4] Id. at 31–33.

[5] Id. at 35–36.

[6] Id. at 63.

[7] Id. at 64–67.

[8] Id. at 63–65, 67–68.

[9] Id. at 71–72.

[10] Id. at 84.

[11] Id. at 83, 86.

[12] Id. at 85.

[13] Id.

[14] Id. at 86.

[15] Id. at 100.

[16] Id. at 164–65.

[17] Id. at 165.

[18] Id.

[19] Id. at 166–67.

[20] 1 William H. Page, Page on the Law of Wills § 3.13, at 116 (Jeffrey A. Schoenblum ed., rev. ed. 2003).

[21] Id. at 117–18.

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Last Updated: 06/09/2015