The English common law concept of dower provided a wife the right to elect a share in her deceased husband’s real estate. This prevented the husband from disinheriting his wife completely. In Michigan, a wife was otherwise guaranteed a life estate in one-third of her husband’s real property. However such was not all encompassing. Some of the most common scenarios in which dower did not apply include:
- Husband owned the property in joint tenancy with other(s).
- Husband had a prior written agreement with his wife regarding the property.
- Husband sold the property during marriage, and 25 or more years had passed.
- Wife willingly lived outside of the State of Michigan (non-resident).
From a practical standpoint, a dower election was rarely seen, as a wife typically received more than one-third by way of her husband’s will or trust.
On January 6th, 2017, Michigan Gov. Rick Snyder signed into law a bill that abolished dower. Michigan was the only state to provide such protection solely to women. Because of the United States Supreme Court decision on same-sex marriage in Obergefell v. Hodges (2015), dower arguably became unconstitutional as it would be in violation of the Equal Protection Clause of the 14th Amendment. Though abolished by the legislature and signed into law, reference to dower remains in the Michigan Constitution of 1963.
In the past, a husband conveying an interest in real property was typically required to obtain his wife’s signature. This otherwise extinguished dower rights in the property, preventing any future cloud on the title. It is unclear as to how title insurance companies will treat this change moving forward. Until further clarification by the legislature or courts, dower may not yet be stricken from the real estate community’s vocabulary.
Attorney Joseph C. Jones advises clients on estate planning, asset protection, business law, and real estate law matters. Joe can be reached at (906) 914-4181 or [email protected] Jones Law PLC is a Michigan & Wisconsin based provider of legal services.