Many genealogists conduct research as though they are somehow more related to the male side of their families than the female side. This tendency may be due, in part, to a strong identification with a surname. However, a contributing factor may be the difficulty of researching women in early America. In the English—based colonies, not only did women change their surnames when married, but their legal status prohibited them from acting in their own behalf, buying property, or making other contracts. These limitations make women less visible in the public record. As a result, special strategies and an understanding of women’s legal rights are needed to identify the female side of a family.

Many states granted significantly different rights to the feme sole, a single, widowed, or divorced woman, than to the feme covert, a married woman. A single woman had the same legal rights as a man, e.g., she could enter into contracts, sue her debtors, and dispose of personal and real property by either will or deed. Once a woman married, however, she became a feme covert, and this legal autonomy ended. In early Virginia, for example, a married woman could neither execute a will nor enter into a legal contract without her husband’s permission. Furthermore, a husband could dispose of his wife’s personal property as he wished. Her livestock, jewelry, furniture, clothes, wages she earned, and property she inherited during the marriage belonged to her husband (Speth and Hirsch 1983, 7–8).

However, changes designed to extend greater protection to women began early. The wife’s right of dower, typically one-third of her deceased husband’s personal property, resulted in a law in some states that required evidence of her voluntary consent to the transaction for all real estate sales, but not necessarily purchases (Lebsock 1984, 24). As early as 1748, a Virginia statute ordered that a wife’s written permission to convey or sell any land in which she had an interest was necessary, and that she be examined apart from her husband by the justices of the local court to determine if she was agreeable to the sale (Speth and Hirsch 1983, 9).

The ability of daughters to inherit from their fathers also changed dramatically during the colonial period. Primogeniture laws were generally revoked by all states soon after the American Revolution (Shammas et al. 1987, 64–66). By 1790, inheritance laws generally dictated that intestate settlements be divided as follows: an equal division of real and personal property among the children and a one—third life estate to the widow (Shammas et al. 1987, 63–64). Thus, by 1800 (in most states), sons and daughters received equal shares, both real and personal, of their father’s estate.

Possibly the most significant change in women’s rights during this time was the ability of a woman to be heir and testator. From approximately 1850, most states allowed married women, rather than their husbands, ownership and control over all personal and real property they had inherited or been given. This meant that women could will their separate estate property. In addition, a woman could sometimes petition to set up a separate estate from her husband’s, which allowed her to enter into contracts and conduct other legal and business matters if she ran her own business or if the husband was away or incapacitated. However, this practice varied significantly by state (Shammas et al. 1987, 103). By 1890, the wife typically inherited one-third to one-half of the intestate settlements during her lifetime, while the husband inherited one-third of all community property, generally during his lifetime (Shammas et al. 1987, 64; 224–257).

While the early laws were certainly repressive, recent studies by legal historians have documented a disparity between the legal status of women and actual behavior. Among early Virginians who had property to bequeath, the laws appear proscriptive rather than descriptive of reality (Speth and Hirsch 1983, 1–6, 13). For example, an early Virginia statute dictated that when a man died intestate, the eldest son was to receive the bulk of his father’s real estate. The widow was to receive one-third of the intestate’s land, slaves, and personal property. At the widow’s death, the real estate reverted to the couple’s eldest son.

However, patterns of male testators, i.e., those who left wills, diverged significantly from inheritance patterns proscribed by the laws regulating property distribution of intestates. An analysis of Virginia wills probated between 1735 and 1755 showed substantially different behaviors. Approximately 20 percent of the testators bequeathed land to their daughters, and about three-quarters of the testators bequeathed more than one—third of their estates to their wives (Speth and Hirsch 1983, 15).

This pattern of inheritance varied by the age of the testator a the time of death. Elderly men tended to give all of their property to their adult children and grandchildren, sometimes charging the eldest son with seeing that his mother was supported. Younger men with minor children tended to give their wives far more than their dower. Sixty—five percent of the widows received control over real estate, which they used to maintain themselves and their children during their widowhood (Speth and Hirsch 1983, 14–18; 21–23; 28).

In colonial America, divorce or separation was neither economically feasible nor legally easy to arrange. In England, it was possible to break the spiritual contract of marriage in an ecclesiastical court. However, some colonies, including Virginia, had no such courts. As a result, a local county court would occasionally grant a legal separation. Because marriage was a religious matter, however, the courts were hesitant to act in these cases and granted separations only in extreme and unusual circumstances (Speth and Hirsch 1983, 12).

In 1827, the Virginia General Assembly authorized superior courts to grant divorces from "bed and board" on the grounds of cruelty, adultery, and fear of bodily harm. These decrees were basically separation agreements whereby marital obligations were suspended. The wife surrendered claims on her husband, and he renounced rights to her property. By these measures, women established separate estates. Bed and board decrees did not allow the parties to remarry. Complete divorces were allowed only in cases of impotence at the time of marriage, bigamy, and idiocy. By 1848 and 1853, Virginia statutes allowed complete divorce for adultery, desertion, and other situations (Lebsock 1984, 68–70).

Under early colonial laws, including Virginia and Kentucky law, the marriage bond could not be arranged by the bride or her mother. As a result, the groom and a male relative of the bride would obtain the marriage license. The bond was usually posted by the groom and a male kinsman of the bride-to-be, often her father or a brother. Thus, simply because a mother did not give permission for her daughter to marry does not mean that she was not living at the time of the marriage.

Pre-nuptial agreements, while not common, were used by widows to protect the property of their children. As a feme sole, a widow could enter into a contract with a prospective spouse to protect her property and the rights of her children. These agreements were usually filed in deed or court—order books. They generally mention the name of the widow's late husband, her children, and occasionally her father if the property was inherited from her parents.

A widow often seems to disappear after the death of her husband, but, with a little effort, she can be located. A thorough search of wills and cemetery records for the widow should be made, and deeds consulted to determine if she gave or sold her land to an heir in return for support.

Tax records can be helpful in identifying women, even though only adult males were tithable. Women and widows are listed in tax records only if an adult male was residing in the household. These records also may provide clues to the name of the widow and her parents. For example, Kentucky tax lists often show the name of the widow of a landowner for the year or two after the death of the husband, along with a description of the property and, for early tax lists, the name of the person who originally was granted the patent. Investigate the person to whom the land was originally granted to see if that person may be a parent or grandparent of the couple.

Marriage records after the death of the husband should also be searched. Either the license or the bond may indicate that the woman is a widow, helping to distinguish the widow from another woman of the same name. Of course, death and probate records should then be searched for her new married name. However, the assumption that early American widows could easily remarry and did so quickly after the deaths of their husbands may not be entirely justified. An analysis of recorded marriages in Virginia shows that only nine percent of the widows did remarry. The age of the widow is the best predictor of remarriage. Widows with adult children were less likely to remarry than were younger widows (Speth and Hirsch 1983, 28–9).

While widows could and did make wills, some simply relinquished their dower claim to the family’s estate after the death of their husbands. These dower relinquishments were often recorded in deed books or other court or probate records. Because widows often settled their estates in this manner, or because they had no property to relinquish other than their dower, it is often difficult to establish with certainty the death dates of early American women. However, sometimes the death can be dated through the dispersion of property. Examine deeds to see when the children divided property. Disputes among the children sometimes erupted after the death of the mother. Therefore, examine the civil court records to determine if the estate was embroiled in disagreement about its handling. These original records often provide information as to when parents died, and other valuable information on the family.

Settlements of estates without wills are sometimes found under the married names of daughters rather than sons. Therefore, if a search is at a dead end, search marriage records for the new names of daughters and then research that family.

Since a woman’s citizenship status depended upon the status of her husband or father, immigrant women were not required to file for naturalization before 1922, although some did. Therefore, women’s names are often missing from naturalization records. Another important source for urban immigrant women is city directories since they commonly list single adult women as well as married women, sometimes indicating that they were widows. Occupation or place of employment may also be given. By noting the address of the household, the researcher can consult the directory further to establish the family with whom an independent woman was living. Finally, do not overlook sources that are crucial to all genealogical research; censuses, deeds, and other records will help to build a complete family history.

"And if the said Sarah, shall wish to sell or dispose of, in any way, any portion, or all, of the property which she may own, at the period of said marriage, she shall do so, without the interference or controul of said David, and all the profit of her said property shall belong to her and her present heirs . . . "]

Speth, Linda and Alison D. Hirsch. Women, Family, and Community in Colonial America: Two Perspectives. New York, New York: Haworth Press, 1983.

Lebsock, Suzanne. The Free Women of Petersburg: Status and Culture in a Southern Town, 1784–1860. New York: Norton Press, 1984