HARRY HUGHES, Governor

1891

term for years became her husband's property, and he could convey
it. A married woman could not make contracts, either with her
husband or with others. She could sue or be sued only if her
husband were joined as defendant.

At common law, the husband was responsible for his wife's
debts incurred before marriage. He was also responsible for any
of her torts committed before or during the marriage.

Because the common law limited or expanded a married
individual's rights on the basis of sex, the common law violates
the Maryland Equal Rights Amendment ("ERA"). If the ERA
abrogated the common law to the extent that the common law
discriminated against one or the other sex, the remedial Married
Women's Property Acts might be unnecessary. If, however, it is
not certain that the common law disabilities and the common law
obligations are inoperative, then the repeal of these statutes in
their entirety could revive the common law disabilities and
obligations, or could at least force individuals to seek court
interpretation and enforcement of the ERA in order to protect or
reinstate the rights.

An alternative to repealing these statutes might be to
revise them using gender-neutral language. That approach might
create redundancies by statutorily granting rights or protections
that already exist at common law -- e.g., for married men, the
right to hold and use property, to make contracts, and to sue and
be sued individually; and for married women, protection from
personal liability for a husband's premarital debts and for his
torts committed before or during the marriage. In addition, an
across-the-board extension of the rights could produce the
unwanted result of granting substantive rights that otherwise do
not exist. For example, at common law, after a woman married,
her legal or equitable claims could be enforced by her husband,
and became his absolutely when he took possession of them; if he
did not take possession of them, they remained the woman's and
passed to her personal representative. The husband, if he
survived his wife, was her personal representative. A wife,
however, could not be her husband's personal representative.
Before it was amended by Ch. 594, Acts of 1974, former Article
45, § 19 read: "A husband bringing a personal action to recover
in right of his wife after her death may declare specifically
setting forth in the usual manner how the debt or right accrued
to his wife, and stating further that by marriage the debt or
right devolved on him." Thus, both the statute and the
underlying common law violated the ERA by granting a right to
married men only. Chapter 594, Acts of 1974, gender-neutralized
the statute. In doing that, however, the legislature perpetuated
and expanded an archaic rule that conflicts with modern estate
law. But for this statute, a claim of 1 spouse would not accrue
to the other by marriage. If a surviving spouse has the right to
pursue the claims of the deceased spouse, it is as a result of
being the personal representative, but neither spouse is
automatically the personal representative of the other.