§533-16  Curtesy; election between curtesy and will.  In case the wife dies first and intestate, then except as in this section provided, her property shall immediately descend to her heirs, but shall be in all cases, whether she die testate or intestate, subject to a life interest in the husband in one-third of the wife's lands owned by her in fee simple, in freehold, or in leasehold, at the date of her death.  The husband shall also, whether the wife die testate or intestate, be entitled, by way of curtesy to an absolute property in the one-third part of it all the wife's remaining property owned by her at the date of her death, after the payment of all her just debts.  During the life of the wife the husband shall have no curtesy right inchoate or otherwise in the wife's property.  If any provisions are made for the widower in the will of his wife, he shall be subject to the same requirements with respect to election between his curtesy and the provisions of the will, or taking under both, as is a widow in similar circumstances under sections 560:2-205 to 560:2-207.

     No husband who has, for one year or upwards, previous to the death of his wife, wilfully and utterly deserted his wife, or wilfully neglected or refused to provide suitable maintenance for his wife, shall be entitled to any right or interest in his wife's property by way of curtesy.

     The interests to which the husband is entitled in accordance with this section in the wife's real and personal property shall not apply to, and nothing in this section shall be deemed to give the husband any interest in, the wife's interest in community property, real or personal. [L 1888, c 11, §7; RL 1925, §3000; am L 1933, c 68, §1; RL 1935, §4845; am L 1939, c 33, §4; RL 1945, §12115; am L 1945, c 212, §2 and c 273, §4; RL 1955, §319-16; HRS §533-16; am L 1970, c 31, pt of §1; am L 1987, c 283, §50]




  Sections 560:2-205 to 560:2-207 referred to in text are repealed.


Cross References


  Community property, see chapter 510.


Case Notes


  Husband takes curtesy though marriage was voidable because the wife was under legal age.  6 H. 289 (single justice) (1881).

  No curtesy in property in which wife prior to marriage had reserved power of appointment, subsequently exercised in favor of son.  35 H. 59 (1939).