Revisiting the Married Women's Property Acts: Recapturing Protection in the Face of Equality

I. Introduction 92II. The Tenancy by the Entirety and the Married Women's Property Acts: The Early Development of a Legal Doctrine 96A. The Married Women's Property Acts: Removing Wives' Legal Disabilities Under the Common Law 99B. The Married Women's Property Acts: The Property Doctrine, Legal Theory, and Women's History 110III. Coraccio v. Lowell Cents and Dime Savings Bank, King v. Greene, and Sawada v. Endo: Failing to Ask the Debt Protection Questions 119A. The Married Women's Property Acts: The Modem Day Cases in the Property Law Classroom 126B. Reinterpreting the Modem Cases: What Have We Missed? 131IV. Conclusion 144I. IntroductionJudicial interpretations of the meaning of the Married Women's Property Acts in the twentieth century have misinterpreted the historical meaning and significance of the Acts in protecting married women from their husbands' debts. Although the Acts themselves never intended to absolutely equalize married women's status vis-a-vis their husbands, legislators had a specific purpose. They recognized that women were vulnerable under the common law insofar as husbands' rights to manage and control wives' property evoked the possibility of seizure for their husbands' debts. But with the passage of the Married Women's Property Acts,1 wives had separate property that they could use in protecting themselves and their families. A wife need not be fearful of being put out of doors as a result of her husband's insolvency.But married women did not have interests only in their separate property. Married women's interests in tenancy by the entirety marital property were affected by the passage of these Acts. By the twentieth century, depending on the jurisdiction and how the legislatures and courts characterized the impact of the Acts on the common law tenancy by the entirety, married women's rights developed according to different trajectories. In some jurisdictions, husbands retained full control as though the common law regime had not been changed.2 In others, married women gained equal rights to manage property as their husbands once did, to control and subject tenancy by the entirety marital property to their separate debts.3 Still again, other jurisdictions denied husbands the rights they once had and required them to pick up the disabilities their wives once experienced: an inability to have the property seized for their separate debts.4These developments impacting the tenancy by the entirety took place primarily during the course of the nineteenth century-and in stages-as jurisdictions passed the Married Women's Property Acts in response to different waves of property interests. These began with the right to have labeled as separate, the property that married women brought to their marriages or that they received and acquired in the course of their marriage.5 This meant that they had the right not to have their property be considered marital property or property their husbands owned exclusively. Thus, they could avoid creditors accessing property that their husbands would have controlled under the common law. Later periods extended these rights to include protections for the labor women provided in the home and recognition of the wages they earned in the course of their marriages.6Modem twentieth century courts interpreted the Acts to mean equality between spouses with respect to property rights in a harmful way and in contravention of the intent of the nineteenth century framers.7 They held that if husbands' marital interests could be seized under the common law, wives' marital interests could be seized as well. Legislators of the earlier period were interested in protecting wives and families from creditors and modem courts seemed interested instead in supporting the inconceivable: disrupting familial unity by pitting husbands against wives in their attempts to protect creditors. Thus, by the twentieth century, when jurisdictions like Massachusetts and New Jersey were interpreting their respective Married Women's Property Acts, recognition of the married woman's interest in debt protection seemed to have been lost. …