Hess v. Wims, 80-229

• Citation: 272 Ark. 43,613 S.W.2d 85
• Decision Date: 23 February 1981
• Docket Number: No. 80-229,80-229
• Parties: Mary W. HESS and Jean W. Morton, Appellants, v. Geraldine WIMS, Executrix, Appellee.
• Court: Arkansas Supreme Court

Page 85

613 S.W.2d 85

272 Ark. 43

Mary W. HESS and Jean W. Morton, Appellants, v. Geraldine WIMS, Executrix, Appellee.

No. 80-229.

Supreme Court of Arkansas.

Feb. 23, 1981.

Rehearing Denied April 13, 1981.

Friday, Eldredge & Clark by George E. Pike, Jr., Little Rock, for appellants.

Knox Kinney, Forrest City, for appellee.

DUDLEY, Justice.

Appellants challenge the constitutionality of the Arkansas laws that allow a widow, but not a widower, to take against a will and to receive dower interests, statutory allowances and homestead rights.

Mary Hess and Jean Morton, the appellants, and the decedent Hoyt Wims, were the only three children of their parents. When their mother died, Jean Morton was appointed administratrix, and the mother's Mississippi land was sold. The proceeds were given to Hoyt Wims to purchase 57 acres in St. Francis County, where the children had grown up, and their father was to be allowed to live there during his lifetime. Hoyt Wims was to leave the balance of his estate to his two sisters, if they survived him. In 1970, he had a will prepared which left all of his property to his two sisters, subject to a life estate in their father in the real estate.

The father died, and Hoyt Wims became terminally ill. In 1978, during the last year of his life, he married Geraldine Wims and moved into the home she had owned and occupied for a number of years.

After the death of Hoyt Wims in 1979 and the admittance of his will to probate, Geraldine Wims, the appellee widow, elected to take against the will and petitioned for the award of statutory allowances, dower and homestead interests. The trial court, in reliance on our gender based statutes, granted her the relief asked.

The decedent, by a will, left his property to his sisters, the appellants. The statutes in question allow the widow to take part of that property in frustration of the will and to the detriment of appellants. They have that type of personal stake in the outcome of this case that will cause the issues to be developed in a fully adversary proceeding as is necessary to present all issues in difficult constitutional questions, and therefore they have standing.

Appellee filed her election pursuant to Ark.Stat.Ann. § 60-501 (Repl. 1971). This statute allows a widow to take dower against the will of her husband under any condition, but allows the husband to take curtesy against the will of his wife only if her will was executed before the marriage. Dower is an inchoate right, while curtesy may be defeated. No valid compensatory purpose or justifiable governmental function can be found to sustain this gender-based discrimination. This statute must be declared in violation of the Equal Protection clause of the Fourteenth Amendment. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979).

State and federal statutes discriminating against males upon the presumption that all males are superior to females in financial matters have been held to be unconstitutional in recent years. Most recently, in Wengler v. Druggist Mutual Insurance Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (April 22, 1980), the United States Supreme Court held that a Missouri workers' compensation law denying a widower benefits on his wife's work-related death and providing that under the same circumstances a widow could have obtained benefits from her husband's death was an illegal sex discrimination. The Court stated that the burden is on those defending the discrimination to make out the claimed justification, and it is not sufficient that a number of years ago the Legislature thought widows to be more in need of help than widowers.

The United States Supreme Court and this court in recent years have declared invalid a number of gender based laws. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), a provision of the Idaho probate code which preferred males over females was declared void. Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), held unconstitutional a provision of the Social Security laws denying a widower benefit from the death of his wife because he could not prove he was receiving at least one-half of his support from her, while a widow would automatically have been entitled to such benefits. Weinberger v. Weisenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), held unconstitutional a provision of the Social Security Act not providing for a widower to receive benefits for a minor child in his care, while a widow would be entitled to the benefits.

In Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1975), we declared unconstitutional the statute providing for maintenance and attorney fees for wives only, and in Noble v. Noble, 270 Ark. 602, 605 S.W.2d 453 (1980), we declared discriminatory alimony and division of property statutes are unconstitutional. These decisions were based on Orr v. Orr, supra, a United States Supreme Court decision finding the laws of Alabama which allowed temporary maintenance and attorney fees to wives but not to husbands were prohibited.

Our case of Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979), found a statute unconstitutional which allowed illegitimate children to inherit from their mother and not their father. This followed the case decided by the United States Supreme Court, Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The present case presents another set of statutes based upon an impermissible presumption.

In this case the...