Women and Wills: An Empirical Analysis of the Married Women's Property Act and its Remarkable Resonance Today

22 Pages Posted: 23 Aug 2018 Last revised: 24 Aug 2018

Date Written: 2018

Abstract

“The oft repeated rule of the common law is that marriage is an absolute gift to the husband of all the personal estate of the wife which she had at the time of the marriage, or which accrues to her in her own right, during coverture….”.

By 1900, Missouri had a quarter century’s experience with its version of the Married Women’s Property Act, enacted in 1875 to reverse the common law and decree that personal property acquired by a married woman was her own, and later in 1889 a similar statute for real property. While the new statutes did not affect any property a wife had acquired before its passage, they specifically provided that the husband had no right to anything she obtained after the law went into effect. Still, a married woman in 1900 Missouri was constrained in other ways. She could not serve as executrix or administratrix of an estate, and if she had been appointed as such, her letters were revoked as soon as her marriage was suggested to the probate court. The will of a single woman who later married was automatically revoked, on the theory that the marriage took away her ability to execute a will, even though Missouri allowed married women to write wills. And her options to change the law were limited: no woman in Missouri, married or single, could serve as an executive officer of the state or on a jury, or be a judge of a circuit court, and the Missouri constitution expressly prohibited her from voting until the 1919 presidential primaries.

Today, a married woman faces none of these constraints, and so one might expect an empirical analysis of women’s wills in 1900, compared with those a century later, would produce major differences. And yet… whether a woman wrote a will at all, whether she left her estate to her husband or to someone else, whether she served as executrix, whether her will was challenged, among other points, is remarkably consistent in study after study. This examination of every probate file from 1900 St Louis, 805 files in all, looks all these questions and more.

Keywords: wills, probate, litigation, executrix

Suggested Citation

Knaplund, Kristine S., Women and Wills: An Empirical Analysis of the Married Women's Property Act and its Remarkable Resonance Today (2018). 45 Rutgers Law Record 216 (2018); Pepperdine University Legal Studies Research Paper 2018/13. Available at SSRN: https://ssrn.com/abstract=3236295

Kristine S. Knaplund (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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