Married Women's Property Acts in the United States
The Married Women's Property Acts are laws enacted by the individual states of the United States beginning in 1839, usually under that name and sometimes, especially when extending the provisions of a Married Women's Property Act, under names describing a specific provision, such as the Married Women's Earnings Act.
Under the common law legal doctrine known as coverture, a married woman in Great Britain's North American colonies and later in the United States had hardly any legal existence apart from her husband. Her rights and obligations were subsumed under his. She could not own property, enter into contracts, or earn a salary. Over several decades, beginning in 1839, statutes that enabled women to control real and personal property, participate in contracts and lawsuits, inherit independently of their husbands, work for a salary, and write wills were enacted, more often motivated by concerns for family integrity and protecting a household from economic crisis more than by a liberal conception of the role of women in society. Change came in piecemeal fashion. As late as 1867 a decision of the Supreme Court of Illinois in Cole v. Van Riper noted that "It is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage." According to one analysis, the legislation came in three phases—allowing married women to own property, then to keep their own income, then to engage in business—and advanced more quickly in the West just as female suffrage did.
Connecticut's law of 1809 allowing a married woman to write a will was a forerunner, though its impact on property and contracts was so slight that it is not counted as the first statute to address married women's property rights.
Beginning in the nineteenth century, women in the Northern states were the principal advocates of enhancing women's property rights, but the first legislation embodying some of the changes they advocated was enacted in the American South. The Panic of 1837 inspired attempts to limit the impact of such an economic crisis by protecting family assets. Mississippi initiated the trend in 1839 with its Married Women's Property Act that allowed married women to own property. Any attempt to collect debt from her husband could not reach property only she owned. She had the right to refuse to sell the property, but could not manage that property or sell it without her husband's consent. Parents who gave property to a daughter upon marriage also enjoyed the protection the Act provided from a son-in-law's mishandling of his family's affairs. The property a woman could own and protect from her husband's creditors included slaves.
Several Southern states adopted similar legislation, beginning with Maryland in 1843 and Arkansas in 1846. Northern states that acted included Michigan in 1844, which covered both real and personal property obtained by a woman before or during her marriage. More limited statutes were passed during the next two years in Ohio, Indiana, and Iowa.
Texas, still an independent republic rather than a state, passed its act in 1840. It was the most expansive legislation of any enacted in the South and allowed a married woman to enter into certain contracts, write a will, and sue for divorce. Not only could she veto the sale of her property, but she could veto the sale of the family homestead even if she was not its owner. Without referencing the independence of the wife that advocates for such legislation envisioned, legislators argued that the legislation protected the wife and children from irresponsible husbands.
The original state constitutions of Kansas (1859), Nevada (1864), and Oregon (1857) guaranteed the right of women to own property without respect to marital status.
In 1845, New York granted a married women who secured "a patent for her own invention" the right to hold it and retain all earnings from it "as if unmarried". It enacted its Married Women's Property Act on April 7, 1848, as part of a more general movement, underway since the 1820s, away from common law traditions in favor of the codification of law. Ernestine Rose had been campaigning for such a statute since 1836, later joined by Paulina Wright Davis and Elizabeth Cady Stanton. It significantly altered the law regarding the property rights granted to married women, allowing them to own and control their own property. It was used as a model by several other states in the 1850s. It provided that:
- The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.
- The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.
- It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.
- All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.
Pennsylvania followed with similar legislation a few weeks later. In July, the Seneca Falls Convention, an early and influential women's rights convention, approved a "Declaration of Sentiments" authored by Elizabeth Cady Stanton that listed among the "injuries and usurpations on the part of man toward woman":
He has made her, if married, in the eye of the law, civilly dead.
He has taken from her all right in property, even to the wages she earns.
He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.
The movement to expand the property rights of married women did not go unchallenged. Virginia debated and rejected such legislation in the 1840s. In 1849, the Tennessee legislature stated, in one historian's account, "that married women lack independent souls and thus should not be allowed to own property." New York expanded its statute in 1860, with the Married Women's Earnings Act. It then repealed parts of its legislation in 1862, eliminating a married woman's right to guardianship of her children and the right of a widow to manage her late husband's estate.
As the U.S. Congress considered legislation to protect the civil rights of African-Americans that became the Civil Rights Act of 1866, opponents of the legislation charged that it would alter the legal status of married women. Senator Edgar Cowan, a supporter of the legislature ridiculed that suggestion: "What was the involuntary servitude mentioned there? ... Was it the right the husband had to the service of his wife? Nobody can pretend that those things were within the purview of that amendment; nobody believes it."
[T]he position of a married woman ... is, in many respects, precisely similar to that of the negro slave. She can make no contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband.... Though he acquired a fortune through her, or though she earn a fortune through her talents, he is the sole master of it, and she cannot draw a penny....[I]n the English common law a married woman is nothing at all. She passes out of legal existence.
The changing statutes and differences among the states complicated the situation of female authors. A married woman's right to contract with a publisher and to control what her writings earned depended on the state or states where she and her husband lived at the time. As of 1887, one-third of the states had not provided statutory protection for a married women to control her earnings. Three states gave married women no legal status until late in the nineteenth century: Delaware, South Carolina, and Virginia. Even where statutes appeared to establish some measure of rights for a married women, courts interpreted statutes to her disadvantage and relied on common law whenever a statute was less than explicit.
In an exception to the statutory expansion of the legal rights of married women, the California Constitution of 1849, drawing on the community property tradition of Spanish civil law rather than the common law tradition, distinguished a wife's property from community property: "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property, as to that held in common with her husband."
- Mary Beth Norton, "'Either Married or to bee Married': Women's Legal Equality in Early America," in Carla Gardina Pestana and Sharon V. Salinger, eds., Inequality in Early America (University Press of New England, 1999), 25-45
- Khan, B. Zorina (2005). The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920. Cambridge University Press. pp. 163, 166–8. Khan provides a table of the states and their enactment of statutes in these three categories.
- "Married Women's Property Laws". American Women. Library of Congress. Retrieved February 3, 2013.
- Homestead, Melissa J. (2005). American Women Authors and Literary Property, 1822-1869. NY: Cambridge University Press. pp. 43–4.
- Angela Boswell, "Married Women's Property Rights and the Challenge to the Patriarchal Order: Colorado County, Texas," in Janet L. Coryell, Negotiating Boundaries of Southern Womanhood: Dealing With the Powers That Be (University of Missouri Press, 2000), 89-109, 92, available online, accessed February 3, 2013
- Linda E. Speth, "The Married Women's Property Acts, 1839-1865: Reform, Reaction, or Revolution?", in J. Ralph Lindgren, et al, The Law of Sex Discrimination, 4th edition (Wadsworth, 2011), 12-5
- Boswell, 93-4, 100. Boswell notes that Texas passed other legislation to restrict the reach of creditors, including the Homestead Exemption Act in 1838.
- McMillen, Sally G. (2008). Seneca Falls and the Origins of the Women's Rights Movement. NY: Oxford University Press. pp. ??.
- Stanton, Elizabeth Cady (1848). Declaration of Sentiments. Wikisource.
- Heineman, Sue (1996). Timelines of American Women's History. NY: Berkley Publishing. p. 21.
- Homestead, Melissa J. (2005). American Women Authors and Literary Property, 1822-1869. NY: Cambridge University Press. p. 244.
- Warren, Joyce W. (2005). Women, Money, and the Law: Nineteenth-Century Fiction, Gender, and the Courts. University of Iowa Press. pp. 51–3.
- Wilma Mankiller et al, eds., The Reader's Companion to U.S. Women's History (NY: Houghton Mifflin, 1998), 285, available online, accessed February 3, 2012
- Homestead, Melissa J. (2005). American Women Authors and Literary Property, 1822-1869. NY: Cambridge University Press. p. 29.
- This subject and its complications are examined in Melissa J. Homestead, American Women Authors and Literary Property, 1822-1869, passim.