Given ancient life expectancy and the fact that most wives were younger than their husbands, the marriages of many women in the Roman Empire were ended by their husband's death rather than by divorce.
It was common, at least in the Roman world, for widows still of childbearing age to remarry, and this tendency was reinforced by the Augustan marriage legislation, which mandated remarriage of widows within two years.
In the classical period remarriage was without stigma for both elite Roman women and those further down the social scale (who were more likely to have financial pressures to remarry as well). This was not necessarily the case elsewhere in the Empire; evidence from census returns in Roman Egypt indicates that widowed women were unlikely to remarry after the age of thirty or thirty-five (whereas widowed men were).1Often, however, remarried widows would have children from their first marriage, and this could cause complications. Legally, children born in legitimate marriage belonged to their father's family, and were his heirs if he died intestate (without a will), as they would normally be if he had left a will. Their mother, on the other hand, would belong to her father's family, unless she had come under her first husband's manus upon marriage, which rarely happened in the imperial period [see Chapter 1, Part II.B]. She would inherit from her father when he died, but would inherit from her husband only if he specifically left her something in his will. (Roman law always looked with suspicion on the transfer of property between spouses; see Chapter 2, Parts I.E and II.A.) Nor would she be likely to inherit from any of her children who predeceased her. If their paterfamilias were still alive, anything they had accumulated would legally be his; if they were no longer under paternal power when they died, their property would go to their closest agnate relatives (those in their father's line).2 Moreover, until late in the second century, a woman's own children were not her heirs upon intestacy unless she had no agnate kin.
And in order to make a will, a woman needed the permission of her tutor mulierum [Chapter 1, Part III.A] and had to go through the archaic legal ritual of selfsale (coemptio fiduciaria)f When a mother did leave her property to her children by will, if they were still under paternal power, the property would automatically go to their paterfamilias (probably her husband). He would have to be trusted to pass on the bona materna to them, perhaps when they reached adulthood, perhaps upon his death.4The second century saw improvements in the right of mothers and children to inherit from each other. Under Hadrian, a decree of the Senate (the senatusconsultum Tertullianum) enabled mothers who had the ius liberorum to inherit from children who predeceased them.5 Another senatorial decree of Hadrian's reign gave women the right to make a will without undergoing coemptio [Gaius, Institutes I.115a and II.112]. And in 178, the Senate passed the senatusconsultum Orphitianum, giving a woman's children (both legitimate and illegitimate) first claim to inherit from her upon intestacy. This expressed in law what had long been the feeling of many Romans, namely that children should be their mother's heirs [Dixon 1988, 51-60; Arjava 1996, 105-6; Gardner 1998, 228-33].
Young children would probably still live with their mother after their father's death. Boys under fourteen and girls under twelve who had lost their paterfamilias would have a guardian (tutor impuberum) appointed for them; by the third century this would be followed by a curator until they reached the legal age of twenty-five. Under classical law, a woman could not serve as guardian, even of her own children, though papyrological evidence shows that in the Greek East, many mothers did exercise the functions of guardian.
Conflicts could arise between mothers and their children's guardian.There might also be conflict between children and stepfathers. A woman's husband would not serve as legal guardian of her children by a previous marriage; that role would probably be played by a male relative of their deceased father, an uncle if possible. One issue that might arise in such a situation was the fate of the mother's own property (which she would have acquired by inheritance from her natal family, and perhaps also from her first husband by his will). Though a woman's children were not her intestate heirs, there was a widespread feeling, even before the second century, that they were entitled to bona materna (maternal property), and that they had more right to such property than her second husband [Dixon 1988, 50-1].
Late Roman law continued the trend toward legal recognition of mother-child inheritance rights already seen in second-century legislation. Much late imperial legislation is devoted to bona materna. The father's right over bona materna was modified, so that he had only the usufruct (lifetime use and possession, but not outright ownership or the right to sell or give away) of property his children had received from their mother's side.6 Constantine extended the s.c. Tertullianum by allowing mothers without the ius liberorum to inherit one- third of a deceased child's estate even when there were paternal uncles.7 And Theodosius I officially granted widowed mothers who vowed not to remarry the legal right to serve as their child's guardian.