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May 22, 1984


The opinion of the court was delivered by: Littlejohn, Justice:

May 22, 1984.

The Appellant, the widow of Elbert Boan, brought this action to determine whether she is entitled to a dower interest in 67 acres of land in Chesterfield County, South Carolina. Elbert Boan, a resident of North Carolina, died testate in August, 1976. He willed the subject property to his sister, Helen B. Watson, the defendant-respondent. She contends that she took a fee simple interest in the property under the Will.

The trial court held that, inasmuch as widowers are not permitted to inherit a dower interest or its equivalent, the widow cannot claim because of the equal protection clauses set forth in article I, section 3 of the South Carolina Constitution and the fourteenth amendment of the United States Constitution. The widow has appealed. We reverse.

The right to dower in South Carolina, contrary to popular belief, is not founded in the constitution, nor was it created by statute. It is a common law right created by case law. There are, however, several statutes dealing with the subject. South Carolina Code Ann. §§ 21-5-110 to 21-5-990 (1976). These statutes refer to: (1) Renunciation of Dower; (2) Forfeiture of Dower; (3) Barring Dower of Mentally Incompetent Wife; (4) Acceptance of Distributive Share; Jointure; and (5) Allotment of Dower.

There is no question but under the law existing heretofore, the widow of the testator is entitled to dower in the Chesterfield County land. She seeks to enforce this right by sale of the property with payment to her of one-sixth of the proceeds pursuant to South Carolina Code Ann. § 21-5-910 (1976).

When the common law initially gave the wife her dower right, she labored under the many burdens of coverture which placed her person and property very effectively in the control of her husband. See, e.g., Act of 1795; and McLaurin v. Wilson, 16 S.C. 402 (1881). At that time, most wealth was in real estate and dower guaranteed the widow a minimum inheritance in land on which she could support herself by agriculture. Today, curtesy and all the other burdens of coverture are gone. See generally, Wright v. Herron, 5 Rich. Eq. 441, 446 (1854); Gaffney v. Peeler, 21 S.C. 55 (1884); and South Carolina Code Ann. § 21-5-10 (1976).

The law of dower gave a surviving wife a gender-related benefit with no corresponding benefit to surviving husband. On this ground, the sister challenges the allowance of dower to the Widow as a violation of the equal protection clauses of both the State Constitution and the fourteenth amendment to the United States Constitution.

In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the United States Supreme Court held that the Alabama divorce law which provided that husbands, but not wives, could be required to pay alimony was in violation of the equal protection clause and that, consequently, an award of alimony to the wife could not be enforced. The Court found the gender-related distinction in the statute unconstitutional.

Our General Assembly promptly recognized that Orr invalidated that provision of the South Carolina divorce law which provided for the granting of alimony to wives but not to husbands. By South Carolina Code Ann. § 20-3-130 (Cum. Supp. 1982), the General Assembly amended the law relating to alimony and support so as to make it applicable equally to either spouse.

Orr deals with the economic rights of husbands and wives on the dissolution of a marriage by divorce. It follows that the principle is equally applicable to the property rights of husbands and wives on the termination of a marriage by death.

The right to deal with one's real property without the prior consent and cooperation of one's spouse is substantial and valuable. It is governed by the equal protection clauses.

We agree with the trial judge that Orr makes common law right of dower heretofore recognized in this State unconstitutional. Nevertheless, the trial judge erred in applying it to the facts in this case. His ruling would have the effect of upsetting titles to property which have vested over the years by reason of the law which has not heretofore been contested. Elbert Boan, the testator, died in 1976. The Orr case was decided March 5, 1979. Accordingly, the rights of the widow had been vested for some three years before the case upon which the trial judge relied, and upon which we rely, was decided. Floyd v. Barrineau, 265 S.C. 16, 216 S.E.2d 753 (1975).

We hold that Orr makes the South Carolina dower rights law unconstitutional. The writer of this opinion is of the view that widows of husbands who died after March 5, 1979 take no dower. But since a majority of the Court refuse to apply Orr retroactively, it is the holding of the Court that widows ...

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