Also known as: curtesy estate · curtesy
Written by attorneys · grounded in primary & secondary sources — see below
An interest in land held by a surviving husband in the real property of his deceased wife. The interest is measured as though the wife had held fee simple absolute but remains subordinate to any remainder, executory interest, possibility of reverter, power of termination, or reversion that limited her estate and was not destroyed during her lifetime.
Ella Emerson held Greenacre under a deed creating a fee simple conditional. After her death without satisfying the condition, her surviving husband Edward Everett petitioned for a life estate in the land. The court awarded the interest measured as if Ella had held fee simple absolute, yet the award remained subject to the executory interest that had restricted Ella's original estate.
Eileen Epstein owned Blackacre in fee tail with a remainder in her brother's descendants. Upon her death without issue, her surviving husband Elliot Edmonds claimed a life estate. The court granted the interest calculated as if Eileen had held fee simple absolute, but the life estate remained subordinate to the remainder that had limited her estate.
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Ethan Evans held Whiteacre under a fee tail preserved for a single lifetime only, followed by a remainder in a named remainderman. After his death without qualifying issue, his surviving spouse Evelyn Ellison sought a life estate. The court recognized the interest as if Ethan had held fee simple absolute, subject however to the remainder that restricted his original estate.
Yes. The surviving spouse receives a curtesy interest measured as though the deceased had held fee simple absolute, even when the estate was a fee tail or fee simple subject to condition. The interest is created from the inheritable estate held at death.
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Yes. Any remainder, executory interest, possibility of reverter, power of termination, or reversion that limited the deceased spouse's estate remains superior to the surviving spouse's curtesy interest. The spouse cannot enlarge the estate or cut off those limitations.
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No. A spouse receives neither dower nor curtesy in land held by the deceased only as a life tenant or under a power of appointment. The interest requires an estate of inheritance in the deceased spouse.
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Yes. Many jurisdictions, including those adopting the Uniform Probate Code, have abolished the estates of dower and curtesy entirely and replaced them with elective-share or intestacy provisions that protect surviving spouses without regard to the historical curtesy rules.
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…§ 18 of the Decedent Estate Law, New York at the same time abolished for the future the ancient estates and rights of dower and curtesy, and made important changes in the rules as to descent and distribution of property.