Sunday, February 22, 2009

Question from Ciara - Inheritance laws

I'm writing a book which I would like to set in Tudor England, more specifically during Mary's or Elizabeth's reign. One of the key parts of the plot, however, hinges on inheritance laws during that time. If a prosperous merchant were to be widowed and left with a daughter, and then remarried, would the daughter inherit or would the new wife inherit, providing he had no living male relatives? In the event he did not leave a will.

And if he had left a will, indicating the daughter was to inherit, could the wife legally contest this?

3 comments:

PhD Historian said...

An intriguing question with a complicated answer. You do not state the age and marital status of the daughter by the previous marriage, yet the matter hinges largely on that one point.

Assuming the daughter by the previous marriage was under 21 and unmarried, it is likely that the second wife would inherit most of the property. I say "most" because it would depend on whether any male relative of the deceased first wife stepped forward to claim ward over the surviving daughter. If one did, the estate might be divided and the daughter placed as a ward of her deceased mother's male relative, who would himself gain control over the daughter's inheritance portion.

If no such maternal male relative claimed right of ward, the second wife would likely inherit everything.

If, however, the daughter were married or over 21, she might have claim to a portion of the estate. This would be especially true if she were married. Women had little legal standing, and could usually pursue legal claims only through a male surrogate, such as a husband, father, or brother. Thus if she were married, she would have a far greater chance of suing (through her husband) to gain a portion of the estate. If unmarried, some maternal male relative would likely have to sue on her behalf.

If your wealthy merchant left a will, he could leave all of his property, goods, and chattels to his daughter, but his wife would retain her dower portion. That is, the wife would have the legal right to take away the equivalent of any property she brought into the marriage, as well as any additional property or money promised to her as part of the initial marriage contract. It would be exceedingly unusual for her to be left with nothing.

Widows had far more legal rights than did unmarried women, so it is possible that a widow might challenge a will, especially if the only other beneficiary were also female and happened to be unmarried. It might even be possible for the widow to exert a claim of ward over the first wife's daughter if the daughter were under-aged and unmarried. If successful in that claim, the widow would then have control over the entire estate, regardless of the terms of the will.

How's that for complicated?

Haley said...

Good question and good answer!

Ciara said...

Wow, and Thanks! I don't think I'm going to bother writing in a maternal male relative, but now I will include a will by the father. And I can make sure that my daughter character is of age also.

Thanks so much!