Genealogists can find valuable clues to marital status, and to the timing of marriages or deaths, in properly interpreted records. The following is not meant to be a general treatise on the subject, but rather a summary of those elements most useful to genealogists.
The points made below held true throughout the colonial period and beyond. Coverture as a legal concept was not abolished in the United States until the 1839-1887 period, depending on the state.
Unmarried women had many of the same rights as men, the principal exceptions being the right to vote, hold office, and serve on juries. Unmarried women (including widows) who had reached the age of majority had the right to sue in court, enter into contracts, buy or sell land or other property, make a will, or to be a guardian to a minor. Unmarried women aged 17 or more could also act as an executrix of a will or administratrix of an intestate estate. Women aged 12 or more could make a will (bequeathing personal property only), witness deeds or contracts, and testify in court – though it is relatively rare to find such a record for minor women. The appearance of a woman in any of these records is a nearly certain indication that they were unmarried.
Once a woman married, or a widow remarried, her legal identity essentially disappeared. The traditional English concept of marriage was a corporate one – that is, the married couple were viewed as a single entity with the husband being the legal head of the entity. (That is, by the way, the reason why widows were called “relicts” of the entity.) Blackstone puts it succinctly: “By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”
Coverture was the name applied to this status — a word meaning that the wife’s legal identity was covered by her husband. An unmarried woman was a feme sole. A married woman was a feme covert.
Because a wife did not exist as a separate legal entity, we will very rarely find a married woman engaging in legal actions except for a few special situations like criminal prosecutions, releasing dower, or acting as her husband’s attorney. Obviously, no one would execute a deed, lease, loan, or other contract with a married woman, for that would recognize her as a separate person. To genealogists, the records of most interest are related to property and estates.
Generally speaking, a wife could not acquire or own real or personal property. Her husband, as the head of the entity, owned whatever was his wife’s. Any property she brought into the marriage, or which she inherited during the marriage, were immediately vested in the married couple and therefore became her husband’s for all practical purposes. A husband’s will could bequeath property to his wife, for it would not take effect until his death ended the marriage and she again became a separate legal entity. Thus, a married woman lost the right to separately buy property, make a contract, sue or be sued in court, or make a will without the explicit consent of her husband. Nor could she act as an executrix or administratrix separately from her husband. If we see a woman performing one of these actions we can be nearly certain she was unmarried.
It follows that a woman could not acquire her own separate personal property during the marriage, apart from personal paraphernalia. A parent could bequeath personal property to a married woman, but that property was automatically titled to the married couple. That is why we often see a father’s will leaving the use of personal property to a married daughter, with title to be vested in her children and delivered after her death. If the property were bequeathed outright to the daughter, her husband would have ownership of it and could sell it or leave it in his own will to whomever he chose. By “personal property” we mean livestock, crops, leases, money, farm and household goods, and (depending on the colony and timing) perhaps slaves. Incidental personal paraphernalia like clothing, jewelry and some household goods were, however, usually considered to be owned separately by the wife.
There were some exceptions to this common-law rule. Certain intangible property brought into the marriage which were not actually possessed in a tangible form during the marriage, such as a longstanding unpaid debt, normally remained the wife’s in her widowhood. The second common exception was property covered by prenuptial agreements, marital settlements, or trusts. Wealthy women, both single and widowed, could use prenuptial agreements to retain their interest in separately-owned property during a marriage. And wealthy parents sometimes established what amounted to trusts for their daughters.
A widow received a one-third interest in her deceased husband’s personal property (one-half if there were no children). See the Wills and Estates document for more details.
Real property (that is, land) was treated somewhat differently. If a woman entered the marriage owning land, or acquired it by inheritance during the marriage, her husband acquired a life interest in her land. In essence, the title was held in a sort of joint tenancy. The husband could sell her land as if it was his own, but could not devise it in his will as long as his wife was alive. If the husband died first, such land reverted to the wife because title never transferred. If the wife died first, the land became the husband’s to do with as he wished.
Real property acquired by the husband either before or during a marriage was also his to dispose of by deed or will. The wife, however, had a dower interest in the land for as long as she lived. This dower interest amounted to a one-third interest in the income produced by the land – for instance, rental income or income from timber or crops. The wife retained this lifetime right until she either died or voluntarily relinquished it. She could not sell her dower interest, nor dispose of it in a will, for it was a life interest only. If the husband sold the land without the consent of the wife, or devised it in a will, the wife retained her dower interest. Naturally, a prudent buyer would insist on the woman’s relinquishment of her dower interest in order to obtain a clear title. For more see the article on Dower and Curtesy.
A married woman also lost the right to sue in court, except jointly with her husband or in his name. If she married in the midst of an estate administration, she lost her identity as a separate person and the new couple became the responsible party. The new husband did not, of course, assume any liability for the debts of the former husband, which were secured by the estate. And the widow’s share of the residual estate of her dead husband was vested in her new husband.
Widows regained the rights of unmarried women during the period of their widowhood. A widow could make a will, buy or sell property, act as a guardian, sue or be sued, or be an executrix or administratrix. If the widow owned personal property, she could bequeath it in a will. Unless explicitly given land in a will, widows had only the dower life interest in their late husband’s real property, which could not be devised to her children or sold.
It is worth pointing out that a widow’s children were legally “orphans”, whether she was alive or not. A widow with children had no legal right to choose the guardians of her minor children. If sufficiently poor, she could not prevent her minor children from being bound out.
Abolishment of Coverture
Coverture as a legal doctrine was slow to disappear. Property rights of married women, in particular, were implemented on a step-by-step and state-by-state basis over the latter half of the 19th century. The earliest modifications were made in Mississippi in 1839, with the first comprehensive state law passed in New York in 1848. By the 1880s most states had made significant progress regarding property rights but elements of coverture could still be found in much of the United States well into the 20th century.
This subject is worth commenting on, for divorce as we know it today simply didn’t happen in the colonial south. England, the source of legal tradition in the colonies, was essentially a divorce-free society which didn’t have a judicial process for divorce until 1857. The colonies, especially in the south, adhered to that tradition. Prior to the Revolution and for many years thereafter, the southern colonies had no process for granting a divorce. The only means of obtaining one was to induce the legislature to pass a private bill granting a divorce, something that rarely (if ever) occurred. A few petitions were submitted to legislatures, but colonial assemblies limited their consideration to “divorces from bed and board” (a mensa et thoro) which did not permit the parties to remarry. The only other practical options available to an unhappy couple were adultery or desertion.
Even after Independence, the south continued to be essentially divorce-free for several decades. South Carolina, for instance, did not permit a single divorce in the 50 years following independence. Virginia’s first divorce is reported to have been in 1803. Such processes as existed were so cumbersome that only the wealthy or truly desperate considered their use. For example, Georgia’s constitution of 1798 permitted divorce, but only by a two-thirds vote of the legislature.