What Was Curtesy?
Historically under English common law, when a woman died, her husband was granted a massive legal right called curtesy. Curtesy guaranteed the widower a life estate (the right to live in and profit from) in all of the real estate his wife owned during their marriage, provided they had born a child capable of inheriting the land.
The female equivalent was called dower, which granted a widow a one-third life estate in her deceased husband's real estate, regardless of whether they had children.
Abolition in Florida
Modern real estate law demands fast, clear conveyances without the threat of hidden, archaic marital rights suddenly appearing to cloud the title. Because dower and curtesy created massive nightmares for title companies trying to figure out if a long-dead spouse had a secret ownership interest in a farm, Florida completely abolished both dower and curtesy on October 1, 1973.
The Modern Replacement: The Elective Share
While curtesy no longer exists, Florida law still strongly protects surviving spouses from being completely disinherited. Today, curtesy has been replaced by the Elective Share (Florida Statute 732.201).
If a wealthy spouse dies and intentionally leaves their surviving husband or wife entirely out of their Last Will and Testament, the surviving spouse is not left penniless. Under the Elective Share law, the surviving spouse has the absolute legal right to demand 30% of the deceased spouse's entire elective estate. This includes 30% of their real estate, bank accounts, and investments, entirely overriding the deceased spouse's written Will.
The only way to defeat the Elective Share is for both spouses to voluntarily sign a valid Prenuptial or Postnuptial Agreement explicitly waiving their rights to each other's property.
Related Terms
- Probate — The modern court process where the Elective Share is claimed
- Estate — The total pool of assets subject to the 30% surviving spouse claim
- Cloud on Title — What curtesy used to cause before it was abolished
Barnes Walker Estate Litigation
Barnes Walker's probate litigation attorneys aggressively represent disinherited spouses in Florida, filing immediate claims to enforce their 30% statutory Elective Share rights against massive real estate portfolios and trusts, ensuring they receive the wealth the law guarantees them. Request a legal inquiry for assistance.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC