Inheritance Laws in the 

Nineteenth and Twentieth 

Centuries

France • Germany • United States

March 2014
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
Contents

France...............................................................................................................................................1

Germany...........................................................................................................................................6

United States..................................................................................................................................10
France

Nicolas Boring

Foreign Law Specialist

SUMMARY Inheritance law in nineteenth- and twentieth-century France was largely a product of the 

French Revolution. Succession laws before the Revolution were extremely diverse, 

complicated, and inequitable. The revolutionaries created a greatly simplified and very 

egalitarian inheritance system. The Napoleonic Code brought reforms to the revolutionary 

laws, but largely respected the same basic principles. Beyond that point, French 

inheritance laws remained fundamentally the same, with only a few reforms aimed 

principally at improving the situations of surviving spouses and illegitimate children.

I. Introduction: Inheritance Law Before the French Revolution

Prior to the French Revolution, inheritance law in France was extremely complicated: different 

rules applied, depending on whether the subject was an aristocrat or a commoner, a serf or a 

member of the middle class, a native or a foreigner, a man of the cloth or a layman, etc. In 

addition, the law did not treat women and men, elder and younger children, and legitimate and 

illegitimate children equally.

1

 Rules of succession could also differ according to the type of 

property in question. For example, specific rules applied to lands that were traditionally 

considered fiefdoms, whether or not these were still owned by an aristocrat or had been bought 

by a commoner.2

 Additionally, succession laws were not the same throughout the French 

kingdom; on the contrary, they varied significantly from region to region.3

II. The French Revolution and the Loi de Nivôse an II

The French Revolution brought enormous changes to succession law. While almost no one 

advocated entirely abolishing the concept of inheritance, much discussion was devoted to 

harmonizing succession laws with revolutionary ideals.4

 As early as August 1789, the 

revolutionary assemblies agreed that distinctions between aristocrats and commoners, elder and 

younger children, and fiefdoms and other lands should be abolished.5

 Furthermore, the 

revolutionary assemblies agreed that one set of laws should apply to the entire French territory, 

as opposed to the mosaic of local rules that existed under the ancien régime.

6

1 ROMUALD SZRAMKIEWICZ, HISTOIRE DU DROIT FRANÇAIS DE LA FAMILLE [HISTORY OF FRENCH FAMILY LAW] 60–

61 (Paris, 1995).

2 Id.

3 Id. at 62.

4 Id. at 88.

5 Id.; see also ERNEST VALLIER, LE FONDEMENT DU DROIT SUCCESSORAL EN DROIT FRANÇAIS [THE FOUNDATIONS OF 

SUCCESSION LAW IN FRENCH LAW] 193–207 (Paris, 1903).

6 SZRAMKIEWICZ, supra note 1, at 88.

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The revolutionaries aimed to put absolute equality at the center of succession laws, and to end 

the “paternal despotism” exercised through a father’s last will and testament.7

 Although this 

may have originally been born of sincere ideological motives, these aims quickly gained political 

significance as the revolution sought to entrench itself. Indeed, placing all heirs in a position of 

equality had a tendency to divide large fortunes and big estates into smaller ones, as each heir got 

an equal share.8

 As the owners of large fortunes and estates were generally presumed to be more 

reactionary, dividing their assets was seen as favorable to the revolution’s long-term impact.9

 

The revolutionaries also sought to favor younger heirs over older ones who might be nostalgic 

for the days of the ancien régime, and to prevent fathers from disinheriting heirs who might be 

favorable to the new order.10

This led to the enactment of the Loi de Nivôse an II (Law of Nivôse, Year II, or January 1794, 

under the revolutionary calendar).11 This law imposed strict equality among heirs. If a decedent 

had children, nine-tenths of his/her estate would be strictly divided equally among them. The 

testator had discretion on the disposition of only the remaining tenth of his/her estate (called 

quotité disponible), and even this discretion was limited to the extent that the testator was 

required to bequeath the quotité disponible to beneficiaries outside the family so as not to disrupt 

the equality among heirs.12 If a decedent had no children, but had siblings, the quotité disponible

was slightly increased to one-sixth, with the main body of the estate (five-sixths) distributed 

among the siblings and nephews.13 In the absence of both children and siblings, a decedent’s 

estate went to his/her parents, and then to his/her cousins, with an equal part going to the 

mother’s side and the father’s side.14 Surviving spouses were intentionally left out by the Loi de 

Nivôse an II.

15

In an effort to undermine the aristocracy and promote equality, the authors of this law made it 

retroactive to all successions opened since July 14, 1789.16 This retroactivity was, in turn, 

cancelled by a new governmental regime in 1796, creating much confusion and many 

legal complications.17

7 Id.

8 Id.

9 Id. at 88–89.

10 Id. at 89.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Id. at 89–90; VALLIER, supra note 5, at 185–88.

17 SZRAMKIEWICZ, supra note 1, at 90.

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III. The Napoleonic Code

A. Initial Period

Just a few years later, in 1804, Napoleon Bonaparte brought about a new reform of French 

inheritance law through the adoption of his famous Code Civil (Civil Code, also referred to as 

the Code Napoleon).18 Indeed, a substantial portion of the Napoleonic Code applied to 

inheritance: articles 718–892 dealt with successions, and articles 967–1100 (as well as much of 

articles 893–930) dealt more specifically with wills.19

The authors of the Civil Code wanted to reconcile the various legal traditions that existed prior to 

the revolution, respect presumed “affections of nature,” and balance the rights of families with 

individual freedom.20 Additionally, the authors of the Civil Code strived to produce a highly 

practical legal text.21 Inheritance law under the Civil Code was “a law of transaction, but as 

during the revolution, a uniform and egalitarian law (art. 745 reaffirmed the equality of shares) 

but with a greater freedom to dispose” for the testator.22

Universal succession became the principle under the Civil Code, meaning that the heirs inherit 

both the rights and liabilities of the decedent.23 The decedent’s property was (and still is) 

distributed to the heirs directly and immediately upon death, without the appointment of a 

personal representative or administrator.24 Furthermore, the Civil Code essentially confirmed 

the general principle established in the Loi de Nivôse an II, according to which heirs should be 

designated by law.25 This principle prevents a testator from disinheriting his/her children, 

reflecting the importance of enforcing familial solidarity under French law.26 Testamentary 

freedom was not completely abolished, however, and in fact, the Civil Code gave testators more 

discretion than the Loi de Nivôse an II by increasing the quotité disponible.

27 Indeed, article 913 

of the Civil Code of 1804 provided that “free gifts, whether by acts during life, or by will, shall 

not exceed the half of the property of the disposer, if he leaves at his decease but one legitimate 

child; the third part if he leaves two children; the fourth part if he leaves three or more of 

18 Id. at 91.

19 THE CODE NAPOLEON; OR, THE FRENCH CIVIL CODE, LITERALLY TRANSLATED FROM THE ORIGINAL AND OFFICIAL 

EDITION, PUBLISHED AT PARIS, IN 1804, at 196–302 (George Spence trans., The Lawbook Exchange, Ltd.,

2004) (1804).

20 SZRAMKIEWICZ, supra note 1, at 111.

21 VALLIER, supra note 5, at 247.

22 SZRAMKIEWICZ, supra note 1, at 111.

23 Marie Goré, Inheritance Law, in INTRODUCTION TO FRENCH LAW 289 (George Bermann & Etienne Picard eds.,

Alphen aan den Rijn, 2012).

24 Id.

25 Id.

26 MARIE-FRANCE NICOLAS-MAGUIN, DROIT DE LA FAMILLE [FAMILY LAW] 115 (Paris, 1998).

27 SZRAMKIEWICZ, supra note 1, at 113.

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them.”28 Similarly, article 915 provided that the quotité disponible “shall not exceed a moiety of 

the property, if in default of children, the deceased leaves one of more ancestors in both the 

paternal and maternal line; and three fourths if he leaves ancestors only in one line.”29 

Furthermore, the prohibition on giving this quotité disponible to one of the default legal heirs, 

which was established by the Loi de Nivôse an II, was repealed by the Civil Code, which 

contained no such prohibition.30

B. Evolutions

The Civil Code’s provisions on inheritance law remained largely unchanged throughout the 

nineteenth and twentieth centuries. Indeed, French law of succession “was one dimension of 

family law to have undergone relatively little reform for over 200 years.”31

What few reforms occurred mostly concerned the situation of the surviving spouse, and the 

situation of illegitimate children.

1. The Situation of the Surviving Spouse

Under the Civil Code, as under the laws of the ancien régime, the surviving spouse had very few 

rights to the inheritance in the absence of a will.32 Social norms of the time argued against the 

possibility of one family’s assets passing to another family, and it was also considered that the 

situation of a surviving spouse should have been considered in the marriage contract.33 This 

began to change towards the end of the nineteenth century, however: in 1891, a law was passed 

guaranteeing the surviving spouse’s use (though not necessarily ownership) of a quarter of the 

decedent’s property.34

2. The Situation of Illegitimate Children

The situation of illegitimate children was also very unfavorable under the original Civil Code. 

Indeed, article 756 provided that “natural heirs are not heirs; the law does not grant to such any 

rights over the property of their father or mother deceased, except when they have been legally 

recognized. It does not grant them any right over the property of relations of their father or 

mother.”35 Article 757 then provided that, if the parents had legitimate children, an illegitimate 

child could only claim one-third of the hereditary portion that he/she would have had if he/she

28 THE CODE NAPOLEON, supra note 19, art. 913.

29 Id. art. 915.

30 SZRAMKIEWICZ, supra note 1, at 113.

31 Helen Stalford, Family Law, in PRINCIPLES OF FRENCH LAW 262 (John Bell, Sophie Boyron & Simon Whittaker 

eds., Oxford, 2008).

32 SZRAMKIEWICZ, supra note 1, at 112.

33 Id.

34 Id.; VALLIER, supra note 5, at 378.

35 THE CODE NAPOLEON, supra note 19, art. 756.

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were legitimate. This share would extend to half if the parent had no descendants but many other 

immediate relatives, and three-fourths if the parent had neither descendants nor other immediate 

relatives.36 This changed over time, first in 1896, with a law increasing the illegitimate child’s 

legal share of inheritance, and then in 1907, with a law permitting the legitimation of natural 

children by the subsequent marriage of their parents. Further evolutions finally led to a 1972 law 

providing full equality to all children, legitimate and natural alike.37

36 Id. art. 757.

37 SZRAMKIEWICZ, supra note 1, at 137–38.

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Germany

Edith Palmer

Chief, Foreign, Comparative, and International Law Division II

SUMMARY During the nineteenth century, German inheritance law was splintered into many territorial 

regimes that combined Germanic principles with the Roman law, as it was received in 

Germany from the sixteenth century onward. Throughout the nineteenth century, special 

succession regimes for the nobility and for the peasantry were in effect. Of these, some 

German state laws on the succession of farms by the entirety are still in effect today. 

Current German inheritance law was enacted in the Civil Code of 1896. It is based on 

classical Roman law while also containing some institutions of Germanic origin.

I. Introduction

Until 1900, the effective date of the German Civil Code, the numerous German principalities had 

their own laws of inheritance. These were either based on statutory or customary law, but in any 

event they were rooted in Roman law as it was received since the sixteenth century, in Germany1

in the form of the European jus commune (gemeines Recht, common law) often under the 

influence of the earlier reception of Roman law in Italy and France.2

 Yet, despite the unifying 

influence of the underlying Roman law, the various German laws featured certain peculiarities 

that originated from Germanic law.3

In the nineteenth century, German law was not only fragmented by different territorial laws and 

different interpretations of the Roman-based jus commune, but also by special succession 

regimes for the nobility and the peasantry. Of these, the entailed estates of the nobility were 

abolished in the 1930s4 whereas laws to prevent the splintering of farms are still in effect today 

in some of the German states.5

II. Territorial Systems of the Nineteenth Century

Among the influences of German law that infiltrated the received Roman law of the jus 

commune were slight preferences for intestate succession over testamentary succession,6 the 

1 HANS PLANITZ, DEUTSCHES PRIVATRECHT 233 (3rd ed. 1948). 

2 FRANZ WIEACKER, A HISTORY OF PRIVATE LAW IN EUROPE 114 (Tony Weir trans., 1995).

3 Thomas Gergen, Die gesetzliche Erbfolge einschliesslich des gesetzlichen Erbrechts des Staates und seine Bezüge 

zum Römischen Recht, ZEITSCHRIFT FÜR DIE STEUER- UND ERBRECHTSPRAXIS (ZERB) 371 (2008).

4 OTTO PALANDT, BÜRGERLICHES GESETZBUCH § 2009 n.1 (70th ed. 2011).

5 PLANITZ, supra note 1, at 235.

6 According to a legal maxim, the decedent would die in peace if he left his estate to the rightful heirs. See PLANITZ, 

supra note 1, at 228. 

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permissibility of succession agreements inter vivos,

7 joint wills of spouses, and the institution of 

the executor.8 Many of the German customary or written laws also diverged from the Roman 

law ranking of intestate heirs. All the territorial regimes upheld the principle that closer relatives 

precluded more distant relatives from inheriting while relatives of the same degree of 

relationship shared the estate equally,9 yet the often complex regimes differed from each other in 

various ways.10

Some modernization and streamlining of the principles of inheritance law occurred in the major 

codifications of the nineteenth century. Comprehensive systems of inheritance law were 

contained in the General Code of Prussia of 1794,11 the Civil Code of Saxony of 1865,12 and the 

Austrian Civil Code.13 Of these, the Austrian Code was the most concise and cogent. It was 

influenced by natural law, the thinking of the age of reason, and the French Civil Code.14

III. Succession Under the Civil Code

German inheritance law was first unified in the German Civil Code of 1896.15 It became 

effective on January 1, 1900, for the German Reich as it existed in 1871,16 while in Austria, 

which did not become part of the German Reich, the Austrian General Civil Code has continued 

in existence until now. The German Civil Code is also currently in effect, and the provisions on 

succession have undergone few changes since their original enactment, the most important of 

which were increases in spousal inheritance rights in 1957, the extension of intestate succession 

rights to children born out of wedlock in 1969 and 1997, and the granting of inheritance rights to 

same-sex partners in 2001.17

The succession law of the German Civil Code is based on a mixture of Germanic law and 

classical Roman law,18 yet it was also shaped by the changed social circumstances of the 

7 Thomas Gergen, Der späte Wegfall der Ungleichbehandlung der Geschlechter im Landwirtschaftlichen Erbrecht, 

ZERB 225 (2010).

8 HELMUT COING, 2 EUROPÄISCHES PRIVATRECHT 596 (1985).

9 PLANITZ, supra note 1, at 231. 

10 COING, supra note 8. 

11 Allgemeines Landrecht für die preussischen Staaten, June 1, 1794, pt. II, tit. 2, chs. 5 & 6, and tit. 9, ch. 8, 

German text available at http://www.koeblergerhard.de/Fontes/ALR1fuerdiepreussischenStaaten1794teil1.htm.

12 Das Bürgerliche Gesetzbuch für das Königreich Sachsen, Jan. 2, 1863, §§ 354–456, reprinted in BERNHARD 

FRANCKE, DAS BÜRGERLICHE GESETZBUCH FÜR DAS KÖNIGREICH SACHSEN (1892). 

13 ALLGEMEINES BÜRGERLICHES GESETZBUCH [GENERAL CIVIL CODE], June 1, 1811, JUTIZGESETZSAMMLUNG No. 

946/1816, §§ 531–824.

14 WIEACKER, supra note 2, at 268.

15 BÜRGERLICHES GESETZBUCH [CIVIL CODE] Aug. 18, 1896, REICHSGESETZBLATT 195, §§ 1922–2382, translation 

of current version available at http://www.gesetze-im-internet.de/englisch_bgb/index.html.

16 Verfassung des Deutschen Reichs, Apr. 16, 1871, REICHSGESETZBLATT 64.

17 DIRK OLZEN, ERBRECHT 18–22 (2012).

18 Gergen, supra note 3, at 371.

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outgoing nineteenth century under which urban populations increased and land ownership 

became less important, while extended families declined in favor of nuclear families—in 

particular spouses. The balance between these influences is shown in the treatment of 

testamentary freedom, which is a guiding principle of the Code while being tempered by 

compulsory portions to which some intestate heirs are entitled. The importance of the spouse is 

reflected in the granting of intestate succession rights as well as compulsory portion rights. 

In the ranking of intestate heirs the Civil Code places descendants of the decedent in the first 

group, his or her parents and their descendants in the second group, grandparents and their 

descendants in the third group, and so on. Within each group, the heirs of the nearest generation 

preclude farther removed relatives. Those of the same generation inherit per stirpes, which 

means that the share of a predeceased member of the group devolves upon his or her issue by 

whom it is shared.19

The principle of universal succession, whereby an estate automatically vests in the heirs when 

the decedent dies without need of an executor, has been described as a characteristic feature of 

German inheritance law. In such cases, the heir or heirs are liable for the debts of the estate and 

for handing over any compulsory portions and bequests.20

IV. Special Regimes for the Nobility

In Germany, the nobility retained the privilege of leaving their estate entailed (Fideikomiss) 

throughout the nineteenth century, even though the issue was hotly debated.21 In fact, the 

institution of the entailed estate was only abolished in 1939.22 The German version of the 

entailed estate allowed the decedent to bind the estate for generations by providing the order of 

succession, usually by insisting that the estate could not be partitioned and that it had to go to a 

male descendant or other relative.23

V. Special Regimes for the Peasantry 

Rules of succession that forestalled the partition of farms between multiple heirs date back to 

Germanic times. They continued throughout the nineteenth century,24 and still exist today.25

The Introductory Code to the Civil Code allows succession of farmland to be governed by state 

law,26 and half of the German states still have such laws today. These laws provide that by 

19 E.J. COHN, 1 MANUAL OF GERMAN LAW 260 (1968).

20 GERHARD ROBBERS, AN INTRODUCTION TO GERMAN LAW 295 (2006). 

21 COING, supra note 8, at 613.

22 PALANDT, supra note 4, § 2009 n.1.

23 PLANITZ, supra note 1, at 235.

24 Id. at 236.

25 Gergen, supra note 7.

26 EINFÜHRUNGSGESETZ ZUM BÜRGERLICHEN GESETZBUCH [INTRODUCTORY CODE TO THE CIVIL CODE], Aug. 18, 

1896, REICHSGESETZBLATT 604 § 64, translation of current version available at http://www.gesetze-iminternet.de/englisch_bgbeg/index.html.

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operation of law or by declaration of the owner, farms of a certain size may not be partitioned 

among multiple heirs but have to be left to one heir who in turn has to compensate the 

other heirs.27

Until 1963, the farm succession laws contained strong preferences for male heirs, even though 

the Basic Law, the West German Constitution of 1949, prohibited sex discrimination.28 In a 

landmark decision of 1963 the Federal Constitutional Court held that preferences for male heirs 

in these laws were unconstitutional,29 and they now grant equal rights to male and female heirs.30

27 Gergen, supra note 7.

28 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [BASIC LAW], May 23, 1949, BUNDESGESETZBLATT 1

art. 3(1), available in translation at http://www.gesetze-im-internet.de/englisch_gg/index.html.

29 Bundesverfassungsgericht [Federal Constitutional Court] Mar. 20, 1963, 15 BVerfGE 337.

30 Gergen, supra note 3.

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United States

Luis Acosta

Senior Legal Information Analyst

SUMMARY Inheritance in the United States is generally a matter of state law. During the colonial 

period, the colonies adopted English inheritance law. Following independence, most states 

enacted statutes that codified common law with some modifications to English law and 

procedure. In the nineteenth century, with westward expansion, some territories entered 

the union as community-property states, adopting aspects of civil law. Most states adopted 

legislation giving married women control over and power to devise property they had 

inherited. Some differences are found between pre-1850 and post-1850 states concerning 

equality of widows’ and widowers’ intestacy rights. Over the course of the twentieth 

century, widows came to be treated more equally in inheritance compared to widowers, 

and spouses came to be treated more favorably in intestacy compared to children. 

I. Introduction

Inheritance in the United States is generally a matter of state law, and each of the fifty states (as 

well as the District of Columbia and the US territories) has its own history of the law of 

inheritance. This discussion will provide a brief overview of highlights and general trends 

among these jurisdictions.1

II. Colonial Period

A discussion of the law of succession in the colonial period in America is necessary for an 

understanding of later developments. 

During the colonial period, the colonies adopted English inheritance law, largely replicating the 

mode of wealth transmission found there, including the power of a testator to dispose of real and 

personal property by will, subject to regulation by statute.2

 

As of 1720, while the colonies generally relied on common law with respect to inheritance, most 

had enacted statutes governing distribution of personalty, and had created procedures for 

1 A comprehensive treatment of the history of the law of inheritance throughout the US is CAROLE SHAMMAS,

MARYLYNN SALMON & MICHEL DAHLIN, INHERITANCE IN AMERICA FROM COLONIAL TIMES TO THE PRESENT

(1987), bibliographic information at http://www.worldcat.org/oclc/14134770. What follows is mostly derived from 

that work. Other relevant titles include LAWRENCE M. FRIEDMAN, DEAD HANDS: A SOCIAL HISTORY OF WILLS,

TRUSTS, AND INHERITANCE LAW (2009), bibliographic information at http://www.worldcat.org/oclc/259716073, 

which discusses changes in aspects of the law of succession within their social context, and HENDRIK HARTOG,

SOMEDAY ALL THIS WILL BE YOURS: A HISTORY OF INHERITANCE AND OLD AGE (2012), bibliographic information 

at http://www.worldcat.org/oclc/774394439, which focuses on the effect of inheritance law on elder care and family 

life in the US.

2 SHAMMAS, SALMON & DAHLIN, supra note 1, at 23, 38–39.

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probating wills and administrations (since they lacked ecclesiastical courts to handle probate like 

those in England).3 

In some instances colonial legislatures passed statutes to alter common law on the descent of 

land, kin succession, and limitations on testamentary freedom. A majority of colonies rejected 

primogeniture and passed statutes to allow younger sons and daughters to receive shares of 

an estate.4 

As to the rights of widows, most colonies followed the contemporaneous English practice 

granting testators freedom to will personalty, although two states, Virginia and Maryland, 

allowed widows to claim a share of personalty notwithstanding the will.5 

III. Postrevolutionary Period

In the period following separation from England, most states enacted statutes codifying 

common-law provisions while making some changes to English law and procedure.6

 

Most states abandoned primogeniture and provided statutes to address the division of land 

among children. By 1800 in most states, sons and daughters received equal shares in real and 

personal property.7

Most states passed statutes providing for widows to receive cash sums in lieu of dower in the 

land, and statutes making explicit what a widow would receive upon renouncing her 

husband’s will.8

A few states’ statutes addressed the inheritance rights of illegitimate children.9 

IV. Nineteenth Century

In the nineteenth century, as the US expanded westward, state laws on inheritance continued 

to evolve. 

Eight western territories, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, 

and Washington, entered the Union as community-property states. Community-property states 

derived aspects of their inheritance laws from civil law. Wives in community-property states 

automatically inherited one-half of community property—namely, that property acquired during 

3 Id. at 31.

4 Id. at 31–33.

5 Id. at 35–36.

6 Id. at 63.

7 Id. at 64–67.

8 Id. at 63–65, 67–68.

9 Id. at 71–72.

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the marriage and which neither spouse had received as part of an inheritance or gift. However, 

in four of the community-property states, California, Idaho, Nevada, and New Mexico, if the 

wife died first, all community property went to her husband, whereas if he died first, she could 

only claim half, and he could bequeath his half to whomever he pleased.10 

In the mid-nineteenth century, most states passed legislation giving married women rather than 

their husbands the ownership and control over all personal and real property they had inherited 

or been given. Married women’s inheritances became separate property that they could bequeath 

as they wished. As of the 1890s, there was a general acceptance in all areas of the country, in 

both community-property and common-law jurisdictions, that married women should have the 

power to devise and bequeath property they inherited.11

Differences are apparent between jurisdictions that entered the union before 1850 and those that 

entered thereafter. The post-1850 jurisdictions tended to make equal the intestacy shares given 

to husband and wife, either by increasing widows’ shares to one-half or by reducing widowers’ 

percentage to a third.12 The post-1850 jurisdictions also replaced widows’ and widowers’ 

lifetime tenure in realty with fee-simple tenure.13 The post-1850 jurisdictions also typically 

made personalty and realty more similar by eliminating doctrines such as dower and curtesy, and 

certain intestacy-share provisions that provided for lifetime property use rather than 

absolute ownership.14

It also became more difficult to disinherit a child in many states, as the number of states that 

passed laws requiring parents to state in their wills their specific intention to leave out a son or 

daughter increased significantly.15

V. Twentieth Century

The twentieth century saw significant changes in most states’ laws with respect to the equitable 

treatment of women in inheritance.

The trend begun in the nineteenth century of replacing spousal intestacy shares from lifetime 

tenure to fee-simple tenure continued. By 1935, 60% of the states had made this change, and by 

1982 all states had.16

Over the course of the twentieth century, the proportion of a decedent’s estate that under 

intestacy went to the spouse rather than to children or others increased in many common-law 

jurisdictions. While in 1935, over 90% of common-law states offered spousal shares lower than 

10 Id. at 84.

11 Id. at 83, 86.

12 Id. at 85.

13 Id.

14 Id. at 86.

15 Id. at 100.

16 Id. at 164–65.

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what would be awarded in community-property jurisdictions, by 1983, such jurisdictions were in 

the minority.17

The four community-property jurisdictions mentioned above that initially treated widows 

differently than widowers eventually amended their laws to treat widows and widowers 

the same.18 

Another trend in the law among most American jurisdictions during the twentieth century was to 

treat spouses relatively more favorably than children and other relatives in intestacy statutes.19 

By the end of the twentieth century, with respect to the right to devise property by will, while 

protection of children from disinheritance was “almost nonexistent,”20 there was a diverse array 

of spousal protections that varied by jurisdiction:

[C]ommon law dower has been substantially retained by fifteen states; statutory dower, 

by which the widow is more generously allowed to take a fee interest rather than a life 

interest, exists in eight jurisdictions; ten states have done away with dower altogether and 

have created in its place an inchoate, statutory interest in the other spouse’s property 

which is protected during coverture by the husband’s inability to convey unencumbered 

title by his sole act; and the remaining states do not give the wife an inchoate interest 

during coverture but limit her instead to a forced share in whatever property the husband 

leaves in his estate at death. The present state of the law represents a jungle, with hardly 

two states to be found that are exactly alike, and there exists in reality fifty different 

schemes most of which, when analyzed, are not built upon a single adequate interest 

given the surviving spouse; but instead give her a bit of homestead, a bit of widow’s 

allowance, and in addition a bit of dower or some statutory substitute therefor.21

17 Id. at 165.

18 Id.

19 Id. at 166–67.

20 1 WILLIAM H. PAGE, PAGE ON THE LAW OF WILLS § 3.13, at 116 (Jeffrey A. Schoenblum ed., rev. ed. 2003).

21 Id. at 117–18. 

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