Myth busting: inheritance law in the Regency Era

This is a republication of a previously posted article from http://www.austenauthors.com on June 2, 2011

For most fans of historical fiction and period films, English inheritance law is one of the most confusing parts of understanding English society. Unfortunately, it is also a major part of many novels from that period, as the inheritance of property could make the difference between living well and abject poverty. I am going to talk about some of the myths which I hear frequently and then talk about what the law really was during the Regency Era.

Myth #1: Women could not own property.

Wrong. This is completely untrue, as even a casual reading of Pride and Prejudice (Lady Catherine de Bourgh) or Sense and Sensibility (Mrs Ferrars) will demonstrate. Both Lady Catherine and Mrs Ferrars have complete control over their fortunes owning property and running their own estates. The catch to this is that when a woman married all her property became her husbands, to do with as he pleased. The exception would be the money set aside as her settlement when they married, which was to support the wife and any children still at home if the husband should die. He cannot touch the settlement. If she is widowed this money provides her with what is called a jointure, which is basically an allowance for a widow.

Myth #2: The Law of Primogeniture requires that estates always go to the eldest son.

Wrong. The Law is only involved in passing on property if the owner dies intestate (without a will). In this case, the entire estate will go to the eldest son and the others will have nothing, unless the new owner chooses to help him. Society would look down on a man who tossed his elderly money out of the house to starve, but anything he does to help her and any unmarried sisters or underage brothers is done because he wants to; or at least he does not want to look like a complete toad. If there is no will and no male children, then the property would be divided among the daughters.

If a man left a will when he died, then he could leave freehold (not entailed) property however he wished, but there were a couple of societal pressures that would probably affect his decisions. First, custom was on the side of keeping the estate intact and passing it to the eldest son. Very few landowners would divide the property between all his children, or even between all his sons. In pre-twentieth century England, your place in society and your power were determined by how much land you owned. Although canny men would also have other investments, their land was what gave them both money and status. If, as an example, a man divided his land between his three sons when he died, they would each have 1/3 the power that their father had. If they then divided their pieces upon their death, it would not take many generations for the property to be cut up into pieces too small to support a family. Since a gentleman could not work for a living, loss of his land and the necessity of going out to work would drop him from the peerage or the gentry down to the level of a tradesman and he would no longer be associated with by his previous friends.

Myth #3: All land is entailed and must go to the nearest male relative.

Wrong. Entailment of land (as in Mr. Bennet’s property in Pride and Prejudice) is something which is voluntarily done by some previous owner. An entail specified that the estate went to the nearest male relative. It was active for a variable period, most often three or four generations, depending on how it was set up. It could not be set up for an unlimited time as English law forbade tying up land in perpetuity. An entail with no end could eventually, if all of the males in a family died, cause the estate to be sitting there with no owner forever. An entail could be removed before the end date if the owner and his heir (two generations of owners, in other words) both agree to break it. This is what Mr. Bennet wanted to do in Pride and Prejudice; if he had had a son they could have gotten together and removed the entail and the daughters could be given a share. This could only be done by the actual heir. In the case of Mr Collins, he could not break the entail (if he was stupid enough to agree to it) because he was only the heir presumptive. This means that he was only the heir if there was no closer male; if Mr Bennet was widowed and remarried with a young woman he might have had a son, who would then be the true heir. No one can displace the eldest legitimate son as heir to an entailed estate.

The benefit of an entail for the estate was that it protected the estate from being broken up or sold off. This might be a problem if the son inheriting it was a ne’er-do-well wastrel who gambled indiscriminately, or who in some other way wasted his money and got into debt. Many large estates would have some land entailed and some not, usually because the unentailed pieces were purchased after the entail was in place and not added to the entail.

The disadvantage to an entail is that if a man has no sons the property could end up going to nephews, or even more distant relatives if there are no males closer. This could leave the widowed or unmarried women of the family in desperate straits if the heir chooses not to help these distant relations.

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14 comments on “Myth busting: inheritance law in the Regency Era

  1. Where do you think these myths come from? Are Victorian manners somehow getting skewed into these inaccuracies and confused with the Regency?

    • I think that it comes more from lack of understanding when people read these books. The rules were not significantly different in the Victorian Era when it came to women owning property and it was not until World War I that there was significant change in the inheritance practices and laws (primarily because of the millions of young men killed in the trenches, completely changing English society as women had to take over many jobs left empty and there were no young men in some families to inherit the estates). Because of the complexity of the inheritance laws someone reading one book or seeing one movie (which might be very inaccurate), might make assumptions based on that one situation. If they read only Pride and Prejudice they might conclude that because the Bennet women could not inherit Longbourn, then women could not own property. Now in the same book, Lady Catherine owns Rosings Park and Anne de Bourgh is spoken of as the “heiress of Rosings Park” but those are not the main storylines and might be missed. The first chapter of Sense and Sensibility tells of a convoluted inheritance situation which I don’t think most people understand. They might easily conclude from the results that the Dashwood women could not legally inherit Norland, when in fact the problem was a very unfair will made by someone who was not bound by any legal holds on the property and could do whatever he wanted.

      Because American society has always been less stratified than English society, a result of many younger sons being sent to “the colonies”, we also do not have a reference point to understand entails and the inheritance of large estates which have been in one family for centuries.

  2. Looks like I need to read more of your posts to learn more about the specifics. Off to read.

  3. Very interesting article. Thanks for sharing it!

  4. Bobbi-sue Coen says:

    Thank you for your article, it shed some light on a few things I have been researching. I understand that if a will was left a daughter could inherit property but what about a title is there every a time when a title could be left to a daughter in 1800’s?

  5. Boston Sheryl says:

    Thank you – very interesting! I always wonder how these legalities worked. I really love your sharing historical facts about life in Regency England, medical practices, entails, inheritances, etc. Please keep up the great work!!

  6. Hey! Do you use Twitter? I’d like to follow you if that would be okay. I’m absolutely enjoying your blog and
    look forward to new updates.

    • My Twitter handle is @CAllynPierson- I am an irregular Tweeter these days as my “real job” has hijacked my writing and online time, but I do sneak back into Twitter occasionally. It is so seductive that I find myself just sitting there for hours reading and tweeting, so I have to be very firm with myself and only tweet for a treat…so to speak

  7. I'mAllBooked says:

    Very helpful article in clearing up these little distinctives that appear in Austen’s novels, thanks! (just a little suggestion – I believe the comment just prior to mine by “how to pass a drug test” is probably spam!)

  8. Seo Lernen says:

    Nice post. I learn something new and challenging on blogs I stumbleupon every day.

    It’s always interesting to read through content from other authors and practice something from their web sites.

  9. […] Myth busting: inheritance law in the Regency Era (callynpierson.wordpress.com) […]

  10. Fantastic site you have here but I was wondering if you knew of any
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  11. Thank you for the article and information. Nicely and clearly written/explained.

  12. Barbara Sbrocco says:

    Very informative article. One sentence confused me until I realized the word “money” should read “mother.” The third sentence under Myth#2 begins, “Society would look down on a man who tossed his elderly money out of the house to starve…”

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