The History of Married Women’s Property Rights in Oregon

Under traditional English and American property law, married women had no rights to own property—real property or personal property. Their husbands controlled their property. But the 19th century was a time of change for women’s property rights, and Oregon was at the forefront of some of these changes.

As I’ve written before, married women could file claims under the 1850 Land Donation Act. That law passed by Congress permitted a married couple to file land claims for 640 acres—320 acres under the husband’s name, and another 320 acres under the wife’s name. The Land Donation Act was the first law in the United States that allowed a woman to file a land claim under her own name.

Still, the Land Donation Act was limited in scope. Single women had no rights under the Land Donation Act. And a wife could only file a land claim if her husband did first. This limitation caused problems for women traveling to Oregon whose husbands died along the way, as widows could not file a land claim.

Moreover, the Land Donation Act only allowed ownership. The act did not specify what other rights women had in their land. Almost immediately, disputes arose in Oregon over whether the husband’s creditors could claim the wife’s land to satisfy the husband’s debts. By 1850, most states had homestead exemptions exempting family residences from attachment, and also exempted a wife’s property from attachment for a husband’s debts. But the Land Donation Act was not clear on whether the wife’s claim could receive a homestead exemption or other protection.

In addition, even though land might be held in the married woman’s name, she did not necessarily have the right to manage the property. The language of the Land Donation Act did not give women the right to management their assets, and Congress had in fact declined to include such provisions in the act. Thus, the traditional right of a husband to manage his wife’s property continued.

During debates over the Oregon Constitution that began in 1857, the draft constitution that the delegates adopted contained language about married women’s property which said:

“The property and pecuniary rights of every married woman, at the time of marriage, or afterwards, acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of the husband; and laws shall be passed providing for the registration of the wife’s separate property.”

Late Nineteenth Century Married Women’s Property Law: Reception of the Early Married Women’s Property Acts by Courts and Legislatures, by Richard Chused, 29 Am. J. Legal Hist. 3 (1985)

This provision was passed in Oregon’s Constitution in 1859. But once the constitution was in place, some judges interpreted this provision narrowly, while others were more accommodating of women’s rights to manage their separate property.

In 1866, the Oregon legislature passed another law requiring registration only of personal property, not real property. But courts then interpreted this law to mean that if property was not registered, a husband’s creditors could attach it to satisfy his debts.

In an 1872 case, the Oregon Supreme Court went so far as to state:

“it is the generally received opinion that the sphere of married women’s duties, as they have been heretofore generally recognized and acquiesced in, precludes the means of acquiring by them that knowledge of law and commercial transactions necessary to enable them, as a rule, to safely and understandingly enter into covenants concerning real estate.”

Frarey v. Wheeler, 4 Or. 190 (1872)

Thus, the husband could continue to manage his wife’s real estate, though she held the title, and she could not sell her land claim.

The Frarey case was later overturned by new legislation, which not only gave women rights to their land claims but also to property obtained “by her own labors.” An Act Relating to the Rights of Married Women (Oct. 15, 1872). Prior to this act, a husband could control his wife’s income.

The novel I am working on now takes place in 1867. While one of the married couples in my book does not hold a Land Donation Act claim, nor any other real property, the wife is earning some money “by her own labors.” Nevertheless, the husband claims her earnings are his money. Under the laws of Oregon in 1867, he had a good basis for his opinion. I’m still debating how much this issue will influence my plot.

It wasn’t until passage of An Act Defining the Rights and Fixing the Liabilities of Married Women, and the Relation Between Husband and Wife (Oct. 21, 1878) that women in Oregon gained clear right to manage their property under the same conditions that men could. But this came too late for my current work-in-progress.

For a detailed account of the property rights of married women in Oregon and citations to the acts mentioned in this post, see Late Nineteenth Century Married Women’s Property Law: Reception of the Early Married Women’s Property Acts by Courts and Legislatures, by Richard Chused, 29 Am. J. Legal Hist. 3 (1985)

What surprises you about 19th-century women’s property laws?