(concurring and dissenting):
While I agree that the judgment in this case should be reversed, I disagree as to the basis for reversal.
The majority opinion finds that the institution of dower imposes an invidious gender-based burden upon married men and thereby offends the Equal Protection clauses of the South Carolina and United States Constitution. This finding is based upon Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. (2d) 306.
Today’s opinion will have a devastating impact upon a public wholly unprepared for such drastic revision of the law. This is especially tragic because no constitutional requirement exists for the radical action now being taken. The sole authority invoked by the majority opinion is the United States Supreme Court decision in Orr v. Orr, supra. We are not'told how the Orr rationale requires the result here reached.
I do not find that Orr v. Orr, establishes a directive to abolish all gender-based distinctions. That decision of the United States Supreme Court pertained to domestic litigation and presented rather narrow issues, all of which is disregarded by today’s majority opinion. In Orrv. Orr, the Court was concerned about two aspects of the Alabama alimony statute: (1) the use of gender as a “proxy” for need; (2) the claim that discrimination in favor of women was intended to compensate for past social disadvantages. 440 U.S. at 281-283, 99 S. Ct. at 1112-1113, 59 L. Ed. at 320-321. The Court found that gender should not be proxy for need, the latter being a matter which a divorce court could determine and resolve through specific awards. Finding non-discriminatory solution to the problem of the “needy spouse,” the Court concluded that a gender-based statute was not a permissible way to compensate for historical disadvantages.
Probate courts do not divide estates based upon the respective “needs” of competing claimants. Rights are settled by operation of law, the outcome being determined usually by prior decisions of the decedent. Unlike an alimony case, there is no living wage-earner in an estate probate from whom *521payments can be extracted based on earnings. Unless a testator has established a trust, there is usually no on-going resource upon which to draw. So it is that if women are to be “compensated” through the probate courts, there must be some equivalent of dower for them. If an alternative to dower recommends itself as social policy, the General Assembly in any case must attend that matter.
The Orr rationale is limited to divorce litigation and should not be extended to the matter of dower. There appears to be only one other court in this country which has abolished dower based on Orr v. Orr. Unfortunately, the Arkansas Supreme Court in Stokes v. Stokes, 271 Ark. 300, 613 S.W. (2d) 372, provided no analysis to support its action.
At least one member of the United States Supreme Court would surely be surprised by today’s results. Separately concurring in Orr v. Orr Justice Blackmun conditioned his agreement upon the assumption that Orr v. Orr would not “cut back on” Kahn v. Shevin, 416 U.S. 351, 94 S. Ct. 1734, 40 L. Ed. (2d) 189. The latter case was the 1974 decision which expressly found that widows required “compensatory” protection. Special tax treatment for widows in Florida was approved because, in the words of Justice William O. Douglas, it was “reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposed a disproportionately heavy burden.” 416 U.S. 355, 94 S. Ct. 1737, 40 L. Ed. (2d) 193.
I disagree with the majority with some reluctance. I do not deny that a serious question of public policy is presented by the institution of dower. The time is coming when widows and widowers will stand, for the most part, on equal footing economically. The time may be now. The record on this appeal, however, does not enable this Court to draw any sound conclusions on the social utility of dower in this State. This is the only sound basis upon which to approach a decision of whether the right of dower should be continued.
While much dissatisfaction has been expressed over the institution of dower, most states have stopped short of taking the drastic step now taken by the majority in this case. The changes in other States have generally been accomplished by statute, which permits a full consideration of the public policy involved, including the various policy considerations that might affect the family unit. See: 25 Am. Jur. (2d), Dower & *522Curtesy, Section 38 et seq.; 2 Powell on Real Property, Section 213 et seq.
I therefore concur in the reversal of the judgment, but disagree with the conclusion that dower should be abolished in this State, without a record that presents an in-depth consideration of the basic issues involved and, at least, some consideration of its impact.