In 1870s/80s America, were wills common practice? What would happen to someone's money upon their death?

I am writing a novel about a man in the 1870s/80s who has a substantial amount of money that he inherited from his father. My character, Baker, is unmarried with no children, and until presently his will has left the bulk of his money to his only surviving brother, Jasper. He wants his common law wife and her children to inherit the money upon his death. Does he need a will to change this or would it just be expected that his common law wife would inherit his fortune?

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    2 Responses to In 1870s/80s America, were wills common practice? What would happen to someone's money upon their death?

    1. Louise C says:

      She would not automatically inherit unless there was a will. A common law wife would not be regarded as his legal wife, and as next of kin his brother would inherit. He would need to make a proper will. Better yet, why doesn’t he marry his common law wife legally? It would make her legal position much stronger when it came to inheriting.

      The legal situation would be the same today. If you die intestate (without having made a will), then your property normally goes to your next of kin. A ‘common law’ wife (or husband for that matter) would not have a claim on the estate.

    2. Will says:

      Well asked.

      The answer is NO, she would not inherit a penny without a will. In the 19th century, women were actually considered in law to be "Chattel." In other words, a form of property. They had no rights to inheritance in many states unless there was a will specifically stating it.

      Given that this woman isn’t even legally married, in the eyes of the law at that time she would be considered a whore, and she would get nothing. If your character intends to leave his money to this woman he would need to have a will (and a very good one at that) which specifies her rights.

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