Depending on where you live, you might be subject to an 1800s law that dictates what happens to your property when you die. Dower rights, a product of English common law, once entitled wives to one-third of their husbands’ real property when they died. Dower rights laws are rare today, but there are still a few states that maintain them. If you live in one of those states, it’s important that you understand how dower rights impact your property.
What Are Dower Rights?
A dower right is a real estate interest intended to protect a spouse who does not hold title. Ohio, Arkansas and Kentucky are the only states that retain dower rights.
Dower rights generally kick in after someone has died. A dower rights law entitles a surviving spouse to at least one-third of a deceased spouse’s real property when they die. Dower rights historically applied only to widows whose husbands passed away before them but have since been expanded to protect all spouses equally.
Dower rights laws were once far more popular than they are today. Most states have replaced their dower rights with other estate laws.
The History Of Dower Rights1
Dower rights date back to English common law and became part of state laws across the nation in the early 1800s. In those days, women were usually financially dependent on their husbands and weren’t able to own property of their own, including real estate title.
The purpose of the dower rights was to help a widow support herself if her husband passed away. Dower rights were also seen as being in the public interest. They prevented widows from becoming dependent on government services.
Similar to dower is curtesy, which is a common law right that husbands had. If their wife died, curtesy entitled them to her property and estate. Curtesy only applied to couples who had a child together. It prevented the husband from transferring the property to anyone but the child.
The problem with dower and curtesy is that they each provide benefits to just one gender, and the federal government now prohibits discrimination on the basis of sex. As a result, nearly all states have eliminated their dower rights laws in favor of other estate laws. Those states that still use dower rights have adapted their statutes to apply to all spouses, rather than just wives. The most recent state to eliminate its dower rights was Michigan, which abolished the statute effective 2017.
1 Source: https://www.perkinsthompson.com/history-marital-rights-spouses-estate/
How Do Dower Rights Work?2
Dower rights exist in state law and give individuals an interest in their spouse’s property. When one spouse dies, dower rights require that their spouse be entitled to at least one-third of the property. Spouses maintain their dower rights until they forfeit them, which there are several ways to do.
Dower rights supersede a will. If the deceased spouse has left their entire estate to another individual, the surviving spouse is still entitled to their one-third interest. These laws also prevent spouses from signing away property that their spouse would have dower rights to.
Duration Of Dower Rights
Dower rights are difficult to terminate, and there’s little that someone can do to prevent their spouse from exercising their dower rights. Only the following scenarios can terminate dower rights:
- Death: An individual’s dower rights are automatically terminated when they die.
- Dissolution: Both spouses terminate their dower rights when they dissolve the marriage.
- Release: Spouses may sign a release to give up their dower rights.
- Adultery: Depending on the state, an individual may automatically lose their dower rights if they commit adultery.
There are also laws to prevent a spouse from signing away property without the consent of their spouse. For example, individuals in Ohio cannot sell or transfer their property to another person unless their spouse signs away their dower rights for that piece of property.
Next Step: Seek Legal Assistance
If you live in a state that still enforces dower rights, it’s important that you understand exactly what that means for you. Before you get married, you should understand the impact these laws may have on your personal property. Even if you bring property into the marriage or buy a house with only one spouse on the loan, your spouse may have dower rights on that item.
Living in a state with dower rights also grants you one-third ownership of your spouse’s belongings. If your spouse has valuable property, they cannot sell or transfer it to someone else unless you sign away your dower rights. And if your spouse passes away, you are entitled to a share of their property. If you need assistance protecting your interest in a property either before or after a spouse’s death, consult an attorney.
The Bottom Line
Dower rights entitle individuals to at least one-third of their spouse’s real property in the event that spouse dies. With origins dating back to English common law, dower rights laws have almost entirely been abolished. However, Ohio, Arkansas and Kentucky still maintain their dower rights statutes. If you live in one of those states, it’s critical that you understand what these laws mean for you. If you have questions about dower rights, consult with a real estate attorney.