In the book The Intimate Lives of the Founding Fathers by Thomas Fleming, the author addresses the issue of Martha’s wealth when George married her on January 6, 1759. He notes that Martha’s first husband, Daniel Parke Custis, had died without a will. He estimates the value of their 17,438-acre estate at some three million dollars in today’s money. He then writes:
A third of that sum was Martha’s and the rest would go to her two children, so the entire enterprise was her responsibility for decades to come. The moment George became her husband, Martha’s one-third was his property and he became the administrator of the children’s portions.”
Let’s examine this statement carefully to ascertain the truth of the matter.
First, there is the question of a widow’s dower rights. The statute in force, enacted by the Virginia Assembly in 1673, read:
An act for establishing the dowers of widdows.
WHEREAS many doubts have arisen concerning the estates of persons dying intestate, and of what parte thereof ought to appertaine to the widdow; for cleareing whereof, Be it enacted by the governour, councell and burgesses of the grand assembly, and the authority thereof, that where persons dye intestate, the widdow shalbe endowed with the third part of the reall estate to bee equally divided as to houseing, ffenced grounds, orchards, woods, and other valuable conveniences, dureing her naturall life, and the third part of the personall estate, if there be but one or two children, but if there be any number of children more, how many soever, in that case the personall estate to be devided amongst the widdow and all the children share and share alike; and in case the husband make a will that he hath in it his power to devise more to his wife then what is above determined, but not lesse.”
[Note that the verb endow meant “to provide with a dower.”]
Because Martha’s first husband died without a will, Martha was granted a dower share – the lifetime use of one-third of the estate’s assets. This share would be held in trust for her children. The slaves working the estate were also subject to a dower-determined distribution. [From 1705 until 1792, Virginia defined slaves as real property. This is because if the slaves did not remain with the land to work it, the value of the land was diminished. See Donn Devine, “The Widow’s Dower Interest,” in Ancestry Magazine, Vol. 12, no. 5, 1 Sep 1994.)] Martha received approximately 85 slaves as part of the dower share of the Custis estate.
When Martha remarried, another principle of law came into effect: coverture, which defined the legal status of woman following marriage. Under the doctrine of coverture, the husband and wife became a single unit for property purposes, with the husband having complete control over all the property of either person. All property a woman brought into marriage, including real estate, clothing, furniture, or money, became the property of her husband. (See Dorothy A. Mays, Women in Early America: Struggle, Survival, and Freedom in a New World, Calif.: 2004, p. 91.) However, the wife’s interest in dower real estate was limited to a life estate, not a fee simple interest. Accordingly, a husband could not sell dower real estate (including slaves), without his wife’s consent.
Thus Washington could control Martha’s dower wealth, but he didn’t actually own it (in fee simple) and could not sell it. Martha’s one-third was “his” property only for the duration of Martha’s life.
Further complications ensued for the Washingtons. Martha’s dower slaves intermarried with George’s slaves. Because legal status was traced through the female, all children of dower mothers became dower slaves, but children of dower fathers did not. George did not have the strength to do away with slavery in his own household while he was alive, but he did have a sense of its injustice, and refused to break up families when selling slaves. Thus, he could not (would not) sell any mixed dower families. In his will, he designated that all of his slaves be freed upon his wife’s death, but he had no power to dispose of any of the many dower slaves.
In summary, while many glib biographies assert that Washington gained a fortune by marrying Martha Custis, the reality is more complicated. He did indeed get the use of her dower land and its fruits while she was alive. Martha furthermore was now totally dependent on George because of coverture. She had one major protection by law: the doctrine of necessities, whereby “a married woman had the right to be maintained in a manner commensurate with her husband’s social status.” (Marylynn Salmon, The Legal Status of Women, 1776-1830 online.) But this could be redefined as “bare necessities” if the husband squandered her assets. Divorce was also not readily available as an option; especially in the South, divorce laws were quite conservative, “probably related to slavery: it was difficult for lawmakers to grant women absolute divorces because of their husbands’ adulterous relationships with slaves.” (ibid)
As far as we know, Martha had none of those problems, although like other of the Founding Fathers, George did spend overmuch, and ran up considerable debt. But Martha had her property, come hell or high water.