Ark. Code Ann. § 28-11-301 (2020)

Research References

Ark. L. Rev.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L. Rev.

J. Cliff McKinney, With All My Worldly Goods I Thee Endow: The Law and Statistics of Dower and Curtesy in Arkansas, 38 U. Ark. Little Rock L. Rev. 353 (2016).

Case Notes

Constitutionality.

The operation of the dower provisions under subsection (b) of this section, § 28-11-201, and § 28-11-307 which gave the wife the right of dower which could not be defeated by a husband's conveyance and the comparable curtesy statutes under former §§ 61-228 (repealed) and 61-229 (repealed) which allowed the wife to defeat curtesy by conveyance provided for dissimilar treatment for men and women similarly situated and there was no justification for the discrimination. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) (decision prior to 1981 amendment).

Subsection (a) of this section which was gender based and did not serve an important governmental function was held unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983); Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Subsection (b) of this section, which gave a wife a dower interest in property which her husband may have disposed of during the marriage without her consent, but did not give the husband equal rights to her property, was a gender based statute which did not serve an important governmental function and thus was unconstitutional since it violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), overruled in part, Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Where decedent died intestate, widow's claim of dower to a part of his real property under subsection (a) of this section was the exact equivalent of the rights of curtesy under former § 61-228 (repealed), which he could have enjoyed had he survived his wife; hence, there was no impingement of the equal protection clause, as there was no discrimination in favor of either sex where the deceased spouse died intestate. Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

The statement, in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372, 18 A.L.R.4th 903 (1981), that subsection (a) of this section was unconstitutional was too broad and extended beyond the holding reached in Stokes, supra, which was that where a husband died testate the wife could not take dower against the will, there being no concomitant benefit given to husbands under the law the statement should have been qualified by the provisional wording that the statute was unconstitutional “as applied in this case.” Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983) (decision prior to 1981 amendment).

Dower and curtesy statutes, as they existed prior to 1981 amendments, were valid in cases of intestacy because there was no difference between the dower of a surviving wife and the curtesy of a surviving husband. Dent v. Rose, 281 Ark. 42, 661 S.W.2d 361 (1983) (decision prior to 1981 amendment).

Alienation of Inchoate Right.

A widow may make an equitable transfer of her unassigned dower. Griffin v. Dunn, 79 Ark. 408, 96 S.W. 190 (1906); Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75 (1909).

Unassigned dower is not alienable at law. Flowers v. Flowers, 84 Ark. 557, 106 S.W. 949 (1907).

Bigamous Marriage.

In the absence of divorce, a married woman is entitled to dower, although she has contracted a second and bigamous marriage. Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903).

Conflict of Laws.

The right to dower is governed by the law of the place where the lands are situated. Apperson v. Bolton, 29 Ark. 418 (1874).

Conveyance by Husband.

Dower is not barred by a conveyance by the husband. Smith v. Lamb, 87 Ark. 344, 112 S.W. 884 (1908).

Inchoate dower interest held by defendant's wife in non-homestead property did not preclude a finding that defendant could have obtained enough funds from sale of the property to pay legal fees in a criminal case; defendant was therefore required to reimburse the government for legal services provided under the Criminal Justice Act, 18 U.S.C.S. § 3006A. United States v. Fincher, 593 F.3d 702 (8th Cir. 2010).

Divorce.

A divorce from the bond of matrimony bars the wife's right of dower. Wood v. Wood, 59 Ark. 441, 27 S.W. 641 (1894); Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915); Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922); Moore v. Warren, 160 Ark. 629, 255 S.W. 306 (1923).

Dower Interest.

Ruling in favor of a corporation that the decedent's wife did not hold title to the land or mineral rights at issue was proper because she possessed only a dower interest at the time of the 1986 deed under subsection (a) of this section and the after-acquired title doctrine barred her from asserting a claim to the property. At most, she had only a dower interest in the oil, gas, and mineral rights reserved by her husband in the 1986 deed and even if the deed had specifically limited her conveyance to her actual interest at the time, that interest was inchoate when the deed was executed. Evans v. SEECO, Inc., 2011 Ark. App. 739 (2011).

Federal Estate Tax.

Widow's dower in real estate is not to be reduced by federal estate tax. Thompson v. Union & Mercantile Trust Co., 164 Ark. 411, 262 S.W. 324 (1924), superseded by statute as stated in, Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947).

Improvements.

A widow is not entitled to dower in improvements made by a purchaser from her husband. Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

A widow is not entitled to the value of improvements made upon lands sold without her consent. Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

Judicial Sale.

A widow's dower is not cut off by a probate sale for the payment of debts. Livingston v. Cochran, 33 Ark. 294 (1878).

The probate court cannot order a sale of any part of the lands free of dower. Webb v. Smith, 40 Ark. 17 (1882).

The forfeiture of land for taxes and the sale by the state after the time for redemption expires extinguishes the widow's right to dower. McWhirter v. Roberts, 40 Ark. 283 (1883).

Dower is not barred by a judicial sale, though the widow is a party to the suit, unless her dower was put in issue. Fourche River Lumber Co. v. Walker, 96 Ark. 540, 132 S.W. 451 (1910).

Lands Subject to Dower.

There is no dower in lands held in joint tenancy. Cockrill v. Armstrong, 31 Ark. 580 (1876).

If a trustee has an interest in the trust estate, the wife is entitled to dower if it can be assigned without prejudice to the trust estate. Cockrill v. Armstrong, 31 Ark. 580 (1876).

Where the value of a widow's dower in all of her husband's lots is set apart to her in part of them, she has no claim to dower out of the remainder. Rockafellow v. Peay, 40 Ark. 69 (1882).

A widow is entitled to dower in estate pur autre vie as personalty. Stull v. Graham, 60 Ark. 461, 31 S.W. 46 (1895).

A widow is not entitled to dower in lands held in trust merely. McKneely v. Terry, 61 Ark. 527, 33 S.W. 953 (1896).

An estate in entirety is not subject to dower. Roulston v. Hall, 66 Ark. 305, 50 S.W. 690 (1899).

Land under lease and in tenant's possession at time of landlord's death is subject to widow's dower interest under rules relating to real property and not those relating to personalty. Brack v. Coburn, 210 Ark. 334, 196 S.W.2d 230 (1946).

Mortgaged Lands.

The widow of a deceased mortgagor is not barred of dower in the mortgaged lands by a decree of foreclosure, though she was a party to the suit, unless her right to dower was put in issue. McWhirter v. Roberts, 40 Ark. 283 (1883).

Where a wife joins her husband in a mortgage on land relinquishing her dower therein, after his death she only has dower interest subject to the mortgage, and has no right to compel the administrator to pay off the mortgage with the personal estate. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891).

A mortgage upon a homestead accepted as security for an antecedent debt of the husband in consideration of which the time is extended for a definite period is valid to convey the wife's dower although the wife was induced to execute it by the misrepresentations of the officer who took her acknowledgment that mortgage did not cover the homestead where the mortgagee had no notice thereof. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Dower is not barred by a mortgage in which wife did not join. Lowe v. Walker, 77 Ark. 103, 91 S.W. 22 (1905).

A widow's rights in land are subject to a mortgage existing at the time of her marriage, but an increase of indebtedness secured by the mortgage made after the marriage and in which she does not join would be void as against her. Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563 (1937).

Nature of Dower.

A widow has dower for life of one-third of the real estate owned by her husband at any time during coverture, whether unsold at his death or sold or alienated by him without her consent in legal form, and one-third of all personal estate owned by him at his death, including money or cash on hand and choses in action, absolutely, unless he leaves no children, in which case her interest is one-half of each part instead of one-third. And this dower in each part she takes by way of a lien, created by and at the time of marriage, and paramount to creditors and purchasers, and without any regard to his debts. Her dower in each part is carved out of the specific estate of which he was possessed; and, if she has been deprived of it, she can follow it wherever it may be found, and subject it to her lien, unless by her own laches, she has abandoned or waived the right. Hill's Adm'rs v. Mitchell, 5 Ark. (5 Pike) 608 (1844).

While dower remains unascertained, and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law. Pennington v. Yell, 11 Ark. 212 (1850).

A widow takes dower under law existing at husband's death. Hatcher v. Buford, 60 Ark. 169, 29 S.W. 641 (1895); Sanders v. Taylor, 193 Ark. 1095, 104 S.W.2d 797 (1937).

Dower must be carved out of specific property. Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909).

A widow does not hold as heir of her husband her dower interest in his lands. Barton v. Wilson, 116 Ark. 400, 172 S.W. 1032 (Ark. 1915).

The legislature may change or abolish the inchoate right of dower, it being not a vested right. Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S.W.2d 314 (1930).

Until her husband's death a wife's right of dower is inchoate, that is, it is contingent upon his death during her lifetime. It is not an interest in her husband's property as may be conveyed by her and may only be relinquished by her to her husband's grantee in the manner and form as provided by statute. Le Croy v. Cook, 211 Ark. 966, 204 S.W.2d 173 (1947).

A widow's dower is not an estate in itself but, when assigned, it becomes a life estate in the lands assigned, prior to which it has attached to nothing, although it is a right vested in the widow. Bradham v. United States, 287 F. Supp. 10 (W.D. Ark. 1968).

Oil and Gas Interests.

Where a wife fails to join in deed conveying an interest in oil and gas under certain land, one-third of the proceeds of the oil drawn therefrom is properly impounded to protect her inchoate right of dower. B.H. & M. Oil Co. v. Graves, 182 Ark. 659, 32 S.W.2d 630 (1930).

Partnership Property.

A widow is not entitled to dower in partnership property. Drewry v. Montgomery, 28 Ark. 256 (1873); Welch v. McKenzie, 66 Ark. 251, 50 S.W. 505 (1899).

A widow takes dower in the surplus of partnership real estate, after the payment of partnership debts, as in real estate, for life only, and not absolutely as in personalty, unless there is an agreement between the partners for a conversion and sale of the real estate after the partnership affairs are closed, in which event she takes as in personalty. Lenow v. Fones, 48 Ark. 557, 4 S.W. 56 (1887).

Priority Over Creditors.

When dower is once fixed, it is paramount to the right of creditors and purchasers, and no act of the husband, without his wife's consent, can divest her of it. Tate v. Jay, 31 Ark. 576 (1876).

Trial court's decision reducing a surviving spouses dower interest, received pursuant to the terms of this section and § 28-11-305, for certain claims against the estate under § 28-53-111 was reversed because the claim for a commission was not a debt that the spouse owed to the estate and the claim based on a note was a contingent claim still subject to unasserted defenses available to the spouse. Stevens v. Heritage Bank, 104 Ark. App. 56, 289 S.W.3d 147 (2008).

Proceeds of Land Sold.

A widow is not entitled to dower in the proceeds of land sold by an administrator, but in the specific lands. Tiner v. Christian, 27 Ark. 306 (1871).

Where testator's property at death consists of household goods and land, his will directs the land to be sold and converted into cash, and widow elects to take against the will and consents to the sale of the land, her dower in the realty is limited to a life interest in the proceeds from the sale of the land. Atkinson v. Van Echaute, 236 Ark. 423, 366 S.W.2d 273 (1963).

Redemption of Lands.

Where lands redeemed with money of insolvent estate are assigned as dower, a widow must pay her part of sum paid to redeem. Salinger v. Black, 68 Ark. 449, 60 S.W. 229 (1900).

Relinquishment.

A woman cannot relinquish dower in favor of her husband. Countz v. Markling, 30 Ark. 17 (1875); Pillow v. Wade, 31 Ark. 678 (1877).

An infant married woman cannot release dower. Watson v. Billings, 38 Ark. 278 (1881).

A wife's relinquishment of dower is inoperative when the husband's deed was ineffectual. Smith v. Howell, 53 Ark. 279, 13 S.W. 929 (1890).

A mortgage upon a homestead accepted as security for an antecedent debt of the husband in consideration of which the time was extended for a definite period was valid to convey the wife's dower although the wife was induced to execute it by misrepresentations of the officer who took her acknowledgment that the mortgage did not cover the homestead where the mortgagee had no notice thereof. Hill v. Yarborough, 62 Ark. 320, 35 S.W. 433 (1896).

Statutory mode of relinquishing is exclusive. Bowers v. Hutchinson, 67 Ark. 15, 53 S.W. 399 (1899).

Where a widow, in pursuance of a family agreement, conveys her homestead and dower interests in certain lands of her husband to one of his heirs, she will be held to have abandoned her rights therein. Felton v. Brown, 102 Ark. 658, 145 S.W. 552 (1912).

Sale Under Execution.

Sale of husband's land during his life-time, under execution against him, does not defeat the claim of his widow, within seven years of his death, to her dower interest therein. Roetzel v. Beal, 196 Ark. 5, 116 S.W.2d 591 (1938).

Seizen.

Seizen need not be a legal title as an equitable estate is sufficient. Kirby v. Vantrece, 26 Ark. 368 (1870); Tate v. Jay, 31 Ark. 576 (1876); Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891); Spalding v. Haley, 101 Ark. 296, 142 S.W. 172 (1911).

Where a husband died intestate and dower was assigned to his widow in certain lands and subsequently upon her remarriage her second husband purchased the reversion in the dower lands and died before the wife, such reversionary interest was not sufficient to give the second husband “seizen” in the land so as to support, after the death of the second husband, the widow's claim to dower in such reversionary interest. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

The husband must have been seized in possession during coverture. McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

A tenant's widow cannot claim any dower interest in the land for the reason her husband had no title and was not seized of an estate of inheritance in the land. Kilpatrick v. Kilpatrick, 204 Ark. 452, 162 S.W.2d 897 (1942).

The requirements of seizen are the same under this section as under § 28-11-307. Pfaff v. Heizman, 218 Ark. 201, 235 S.W.2d 551, 23 A.L.R.2d 957 (1951).

Cited: United States v. 339.77 Acres of Land, 240 F. Supp. 545 (W.D. Ark. 1965); Owen v. Owen, 267 Ark. 532, 592 S.W.2d 120 (1980); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981).