If you live in Michigan, your state ended its dower rights in 2017. But if you live in Arkansas, Kentucky, or Ohio, dower is still on the books in your state. This musty old legal provision gives spouses a peculiar set of real estate protections. Kansas, too, has a “dower-like” provision in its KSA 59-505.
If you or your loved ones live in a dower rights state, what’s different about your home’s title?
Let’s take a look.
Fast Dower Facts
Originally intended to force a homeowner to support a widow after death, dower is an interest in real estate for a spouse who’s not named on the title. Most states have replaced their dower laws with modern estate provisions. But the 19th-century spirit of dower rights still haunts home titles in Arkansas, Kansas, Ohio, and Kentucky.
Here’s the backstory:
- Our legal system drew heavily on English common law, which entitled widows to keep at least a third — sometimes a half — of their deceased husbands’ real estate (including the value of whatever was produced on that land). U.S. states with dower have retained this old custom. It’s a vestige of a legal system dating back to the Middle Ages!
- Dower rights came into U.S. state laws in the early 1800s. In those days, women were dependents. They were legally prevented from holding deeds to real estate in their own names. The real purpose of the dower rights was to keep them from drawing on public assistance.
- Today, dower rights are largely abolished. A small minority of states, such as Kansas, still recognize common-law marriage, and have retained remnants of common-law spousal survivors’ rights.
- Living in a state with dower rights also grants you one-third ownership of your spouse’s belongings!
Curtesy was the husband’s counterpart to dower for couples who were also parents. A surviving husband got the deceased wife’s property and could only transfer it to their child. Today, families are more complicated, and U.S. law does not allow discrimination on the basis of sex. Therefore, most states have ended dower rights and those that kept it made it gender-neutral, to protect all spouses equally. So, a dower rights state assigns to either surviving spouse at least a third of the real estate that the couple owned during marriage.
Voiding or Avoiding Dower Rights
Today’s married couples usually want to decide where their property goes. Most don’t want their states telling them who gets their assets after they die. But dower rights aren’t so easy to get rid of.
Some people buy real estate using trusts or LLCs, which can avoid dower issues. But if a spouse is personally named on a real estate deed in a dower state, then dower automatically applies.
Dower rights stay in place for a spouse in a dower rights state, unless the spouse:
- Dies. An individual’s dower rights automatically end when they die. In other words, dower doesn’t pass to the spouse’s heirs. Dower is only a life estate.
- Dissolves the marriage. When a marriage is over, so are both spouses’ dower rights. Whew! (To add a little more nostalgia for the olden days into the story, Kentucky law and Ohio law point to an act of adultery as grounds for cancelling a spouse’s dower rights.)
- Signs a release. A spouse in a dower rights state who wants a different estate plan has to sign a release of their dower rights.
For example, under the Ohio dower statute, a spouse loses dower rights when divorcing or by signing a release deed stating that they relinquish their dower rights. Otherwise, the spouse gets a life estate in 1/3 of the value of the real estate.
A will doesn’t trump dower rights. But what if a couple has signed a prenup waiving any claims to a specified property? Well, here’s the rub. While prenups can prevent spouses from reaching each other’s property in divorce cases, a prenup does not extinguish dower rights. So, in dower rights states, prenup or not, lenders might decline to issue loans on any transactions unless the spouse of the transferor waives their dower interest expressly. The deed must say the spouse releases the dower interest and include the spouse’s signature to that effect.
☛The ancient dower system is why you often see people’s marital status after their names on deeds. But times are changing, and so are the terms/language used in property deeds. Read more on Deeds.com about gender-neutral language on deeds.
Transferring the Deed? Waive the Dower!
As you now know, spouses in dower states may not simply transfer their individually titled real estate without a release of dower. The spousal release ensures the recipient gets an asset’s full value. Without the spousal signature, the deed transferor’s spouse keeps their dower interest (as long as that spouse is alive and married to the transferor). This omission would give the recipient of the deed a defective title.
Title companies handle this when a home is bought with a mortgage. In the sale of a home, or a business based on real estate such as a farm, the title company will have the spouse sign away the dower rights on the deed.
In dower states, spouses are asked to sign mortgages, too, to avert defective title transfers that could impact a loan.
In practical terms, dower only turns into a legal issue if the non-transferring spouse wants to make it so. But the title agent’s or lender’s professional responsibility includes making sure the real estate asset has marketable title.
The Finer Points of Dower
Because dower rights are now off the books in most states, it might surprise readers to know that a few states entitle spouses to a share of real estate that they didn’t buy. Need to know more about how this affects you and your property? To get case-specific advice, you need a lawyer. So, contact a lawyer with experience in wills and estates or family law in your state.
Now, one more important reason to see a professional — wherever you live. Dower is not the only estate planning concept couples need to know about. For example, some states have elective share statutes, enabling a surviving spouse to either take what the deceased person leaves in the will, or choose to take a third or a half of the estate’s value, or a certain amount depending on the length of the marriage.
And some states have community property laws that protect life partners who aren’t on the house title.
You’ll benefit from clarity on how to protect your particular interests or the interests of your life partner. Seek guidance from an attorney in your state.
Supporting References
Tim O’Sullivan for the Kansas Bar Journal: Beyond Moribund – The Case for Repeal of KSA 59-505 (Jan. – Feb. 2023; uploaded as a portable document by Foulston.com).
Ask a Lawyer: Is Dower Rights Still a Thing in Ohio? Nicholas P. Weiss Answers. (Jun. 22, 2023).
Miranda Crace for Rocket Mortgage, LLC, a subsidiary of Rocket Companies, Inc. (d/b/a Quicken Loans®): Dower Rights: What You Need To Know (Feb. 4, 2021).
FindLaw.com from Thomson Reuters: Ohio Dower Rights (last reviewed Nov. 21, 2018).
And as linked.
More on topics: How property is vested, Wills, estates, and trusts
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