Descent and Distribution - Surviving Spouse

The right of a surviving spouse to share in the estate of a deceased spouse arises automatically from the marital status and not from any contract, conveyance, or other act of the spouse. Statutes conferring such rights on a surviving spouse make the spouse a statutory heir. Some statutes regulating the rights of inheritance of a surviving spouse treat property acquired by the decedent prior to the marriage differently than that acquired during the course of the marriage. Others relating to the descent of ancestral estates and property acquired by gifts do not, ordinarily, exclude a surviving spouse.

Right of Surviving Wife As a general rule, modern statutes confer rights of inheritance on a widow. At common law, the wife was entitled to DOWER, which was a fixed interest in all the land owned by her husband during the marriage. This interest in the lands of her husband was inchoate during his life. She had to survive her husband before she could take possession of her interest in the property. Most states have abolished common-law dower and have replaced it with statutes allowing the surviving widow to take an elective share prescribed by statute, usually one-third or what would have gone to her by intestacy or the provision made in her spouse's will. The extent of and the method for computing the inheritance depends on the terms of the statute applicable to the facts in the particular case. Her rights attach only to property that her husband owned at the time of death. The right of a wife to share in the estate of her husband is qualified by his right to make a valid will. The widow, however, will be given a RIGHT OF ELECTION to choose between the elective share, which is usually her share under the laws of intestacy, or the provision in the will, whichever is larger.

Right of Surviving Husband At common law, a surviving husband had an estate by curtesy in his wife's real property to which he was absolutely entitled upon her death. Curtesy has been abolished by many jurisdictions. As of the early 2000s, a husband's rights of inheritance are regulated by statute applicable to the facts in the particular case. As a general rule, a widower's rights of inheritance attach only to property that his wife owned and possessed at the time she died.