Married Women's Property Act of 1848

Legislation

By: Senate and Assembly of the State of New York

Date: April 7, 1848

Source: Library of Congress. American Memory Project. "Married Women's Property Laws" 2006 〈http://memory.loc.gov/ammem/awhhtml/awlaw3/property_law.html〉 (accessed June 19, 2006).

About the Author: Legislative power in the State of New York is vested in two elected houses, the Assembly and the Senate, subject to veto by the governor. The process by which laws are enacted in New York today is essentially unchanged from 1848.

INTRODUCTION

Prior to the enactment of various women's property laws in the United States in the mid-nineteenth century, most legislation with respect to a woman's dealings with both land and income were settled by a number of well established common law principles. The most important doctrine that operated with regard to women and property was the distinction between a woman as a chattel and a woman as an individual person with freestanding rights to property ownership and decision making.

In many cultures, the act of marriage either ended a woman's independent existence or transferred control of her life from her father to her husband; a dowry paid to a husband on marriage—a feature of marriage in many cultures—represents the subsuming of the woman's property rights into those of her husband.

In 1848, dower rights, broadly defined as the life estate to which every married woman was entitled if her husband died without leaving a will, were the only property rights to which a woman in the United States was entitled as a consequence of marriage. Where a woman disputed the will or otherwise believed that it was not adequate provision for her needs, she could claim a one-third share of the value of all property in which the husband had an interest at his death. Dower created a life estate only; the woman cold not control these assets by sale or through a bequest of her own.

Women's limited property rights at the time of the 1848 New York enactment were consistent with the general legal status of women in North America and all other jurisdictions where English legal traditions were in place. Women were assumed to take a subordinate role in family matters, were not permitted to vote, and could not purchase or hold property.

The evolution of property law that permitted a married woman to hold property and deal with it independent of her husband was a lengthy process. The first American law that permitted a woman any control over land was an 1808 Connecticut law that allowed women to leave a will and effect transfers through her bequests. When the New York State legislation was enacted in 1848, the forerunner to the modern American feminism movement began to take shape in the northeastern United States. The leaders of this movement, including Susan B. Anthony (1820–1906), called for the general advancement of women's rights, including those in relation to property, voting, and employment.

PRIMARY SOURCE

AN ACT for the effectual protection of the property of married women.

Passed April 7, 1848.

The People of the State of New York, represented in Senate and Assembly do enact as follows:

Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.

Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.

Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.

SIGNIFICANCE

The Married Women's Property Act of 1848 is one of the most important property law enactments in American history. It became the template for the laws passed in other states that allowed women to own and control property. Interestingly, while English law is the root of much American law, the British Parliament did not pass a similar statute until 1882.

Before the passage of the New York legislation and the subsequent enactments in other states, women could not sue or be sued with respect to property because they were not legal entities. The right to own and control property created a collateral right to initiate or defend legal actions in relation to property.

The New York legislation carved out a place for married women in the otherwise restrictive common law rules that were tied to the notions of a marriage as a single legal unit between a man and a woman, and the limited protection provided to a woman through her dower rights. The first important aspect of the New York law was the express approval of the concept that a woman's land or personal property that she brought into a marriage remained her own. Such property was protected from seizure or any other action by any creditor of her husband. This provision alone represented an exception to the rule that marriage created a single economic unit.

Similar protection was extended to a woman who obtained property through a gift or bequest during marriage. Prior to the enactment of the New York law, if a woman's father left property to a married daughter, it fell into her husband's control. For this reason, many women's marriageability was assessed by how likely they were to inherit significant property from their fathers.

The 1848 New York legislation was truly seminal. All other matrimonial property laws passed in the state of New York, including those that have governed estate planning, marital separation, and rules concerning the calculation of the distribution of the property acquired by spouses during the course of marriage can be traced to this enactment.

The legislation's immediate influence, in addition to its use as a model by other states, is reflected in the Homestead Act of 1862, a federal statute that governed how land could be acquired in the western territories of the United States. Consistent with the notion that married women could hold property independently, the Homestead Act gave title to new land to the head of a household, with no limitations on gender.

In July 1848 the first Women's Rights convention was organized in Seneca Falls, New York—a state seen as an enlightened environment. Wishing to advance women's rights further still, a key platform in the convention's declaration noted that even where a woman owned land, she paid taxes to a government that did not allow her to vote.

While the right of women to hold property became entrenched in most jurisdictions by 1900, the laws were not consistent across the United States. In areas where the English legal tradition was second to that of Spain or Mexico, as in the Southwestern border states of Cal-ifornia, Texas and New Mexico, women's property rights evolved in a somewhat different fashion. In these states a community of property regime was prescribed, meaning a woman's property was held communally with that of her husband; such property could only be managed by the wife in the event of her husband's death. Married women's property laws in these jurisdictions were not brought into line with those in other American states until the twentieth century.

FURTHER RESOURCES

Books

Dickenson, Donna. Property, Women and Politics: Subjects or Objects. New Brunswick, NJ: Rutgers University Press, 1997.

Hoff, Joan. Law, Gender and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991.

Periodicals

Chused, Richard H. "The Married Women's Property Law 1800–1850." Georgetown Law Journal. 71 (1983): 1359-1425.

Web sites

University of Virginia. "Mid-Century Women's Rights Movement: Selected Texts." 2004 〈http://etext.lib.virginia.edu/railton/uncletom/womanmov.html〉 (accessed June 20, 2006).