While the Supreme Court of Arkansas had not spoken on the constitutionality of the dower statute at the time the settlement agreement was signed, shortly thereafter in Stokes v. Stokes, supra, and in a similar case, Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981), it held that the Arkansas dower statute did not satisfy the test set forth by the U.S. Supreme Court in Orr, and was thus unconstitutional. Thus, an initial consideration in our analysis of the statute in question is whether subsequent decisions have an impact on the constitutionality of the statute at the time the settlement agreement was executed.

Hess v. Wims, 272 Ark. 43, 48, 613 S.W.2d 85, 87 (1981).

We held that, since the children would suffer a financial loss if the will were upheld, the court erred in dismissing the action they had instituted. In Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981), we held that those persons who suffer financially were the proper parties to an action. Even if the requests to amend the complaint had not been made, the children would be the eventual recipients of any sums recovered by the executor of the decedent's estate.

A new development occurred on February 23, 1981, when this court held many of our dower and curtesy statutes unconstitutional as discriminating between husbands and wives. Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981). Only thirty days later Act 714 of 1981 was adopted.

We cannot say the finding was clearly erroneous. Turning to the substantive argument, appellant relies on three recent decisions: Stokes v. Stokes, supra; Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) and Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), which came in the wake of Orr v. Orr, 440 U.S. 268 (1979), where it was first held that in the absence of an important governmental function, gender-based statutes which discriminate by giving either sex an advantage withheld from the other, violate the equal protection clause of the fourteenth amendment. But there is a fundamental difference between the cited cases and the case before us, which the Probate Judge correctly observed, for in those cases the widows were asserting a claim of dower against the will of the deceased husband, a right which our curtesy statutes have never given the surviving widower, whose right to curtesy applies only where the wife dies intestate or where her will predates the marriage.

By order dated October 19, 1981, the probate court found Mary Bell Matthews was the widow and Erma Fonteno, Dorothy Friends and Ernestine Caldwell were daughters. On January 26, 1982, an order was entered approving the final accounting and payment of fees. On February 9, 1982, Mary Bell Matthews petitioned for dower and on March 3, 1982, a response was filed by Erma Fonteno alleging that dower rights should be denied because at the time of Booker Matthews' death the dower statute was unconstitutional under our decisions in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981) and Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981). The probate court granted the dower petition, finding that dower should be granted pursuant to the statute in force at the time of death because the widow's dower rights had vested at that time.

Shortly thereafter, appellant filed her petition seeking to bar the widow from receiving a dower interest in the Parker estate. The opinions of Stokes v. Stokes, supra, and Hess v. Wims, Ex'x., 272 Ark. 43, 613 S.W.2d 85 (1981), were discussed by this court in the case of Hall v. Hall, Ex'r., 274 Ark. 266, 623 S.W.2d 833 (1981). In Hall, we held that a constitutional decision such as Stokes or Hess has never been completely retroactive.

Appellant alleged in her complaint that at the time of the execution of the deed she was on medication, suffering from mental and physical problems. Her husband died on October 31, 1979, and appellant's complaint was filed on December 3, 1980. Appellees moved for dismissal of appellant's complaint alleging that the appellant had no cause of action because the statute granting her an inchoate right of dower had been declared unconstitutional in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981) and Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) handed down on February 23, 1981. Appellant responded to this motion by stating that Act 714 of 1981 which was passed in March of 1981 to cure the defects in the dower statutes should be applied in this case. The trial court sustained the motion to dismiss finding that the appellant had no vested right of dower, basing the decision on Stokes and Hess.

On February 23, 1981, we declared the then existing dower statutes unconstitutional because of gender-based discrimination. Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981). The new dower statutes, Ark. Stat. Ann. title 61, Chapter 2 (Supp. 1981) did not become effective until March 25, 1981.

In several recent cases we have held this assumption impermissible by invalidating similar gender-based statutes and we can find no valid governmental interest served by this statute. Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981); Hess v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981); Noble v. Noble, 270 Ark. 602, 605 S.W.2d 453 (1980); Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979). Appellants urge that if 50-415 is to be declared unconstitutional the holding should be prospective only, as it would not be fair to apply it in this case.