Bye-Bye Dower

Several months ago I wrote about dower rights in Michigan.  At that time, I pointed  out that Michigan remained  one of the few, if not  only, state in the country to retain, for married women alone, what are called “dower” rights.  Dower is defined as the wife’s right, under common law, upon her husband’s death, to a life estate in one-third (1/3) of the land her husband owned in fee (had title to).  Since women, historically, had stayed home to raise a family, and did not work outside the home, the concept was to make sure that the wife was not impoverished and had a place to stay if her husband pre-deceased her.   The State of Michigan has also expressly adopted dower rights by statute, although the male form of dower, called curtesy, was abolished in the 1950’s.  As noted, with limited exceptions, dower only attaches to real property (land/houses) and does not attach to personal property.

As I observed, dower rights typically arise in a real estate transaction, where a deed or mortgage has to be executed by the wife, even though she is not on the title to the property, or when the husband has died and title to the real property he owned in his own name was acquired before or during the marriage.  Dower rights and issues often arise upon divorce, as well.  When a man brings real property into a marriage, the wife will automatically get dower rights therein once they are married.  If the parties thereafter divorce, and the husband is to retain the property, it will be necessary to have the wife sign a Quit Claim Deed so as to release her dower rights in the property.  (In the alternative, the Judgment of Divorce quite often is recorded in lieu of such a deed, to release the wife’s dower rights).

At the end of my prior discussion, I observed that it is presently unknown if dower rights could be asserted by one of the parties in a same sex marriage, following the 2015 U.S. Supreme Court decision in the Obergefell case, holding states must license marriages between two people of the same sex and recognize a marriage between a same sex couple from another state.    The common law and statutes speak of dower rights belonging to a “woman” or a “widow”, denoting a female person.  If you have a female/female relationship, it is unclear as to who in such relationship (or both) could assert dower rights.  Likewise, it is unclear if either party in a male/male relationship would have dower rights.  Similarly, if a person is a married female and undergoes a sex-change operation, would she/he lose their dower rights once the transformation has been completed (or, if a male were to become female, would they gain dower rights if still married)?  I also wondered if the continued existence of dower rights violated the “equal protection” clause of the U.S. Constitution.  I concluded that these issues will have to be left for to Michigan legislature, or the courts, to sort out.

The Michigan legislature has recently decided to resolve these thorny issues through the elimination of dower rights, altogether.  In separate bills that were recently passed and sent on to the Governor for his signature, the new statutes abolish both statutory and common law dower, effective 90 days after the date the bills are signed by the Governor.  (The new law will not apply to property owned by men who die before the effective date).

Apparently, efforts had been undertaken to substitute a new gender-neutral form of property interest or some type of required notice for all transfers of real property by a spouse.   These efforts would have also entailed numerous revisions to the Michigan Probate Code (EPIC), divorce statutes, as well as real estate transfer statutes, and failed to gain broad support. As opposed to overhauling numerous statutes and otherwise complicating matters further, the legislature took the logical and easy way out and simply eliminated dower rights altogether.

If you have questions about dower, its continued application, going forward, need a deed prepared, or need legal assistance in handling a real estate transaction, please contact the real estate attorneys at Damon, Ver Merris, Boyko & Witte, PLC.  We are here to help.  – Larry A. Ver Merris

While this posting originates from a law office, none of the contents should, in any way, be considered legal advice. If you have not signed a retention letter describing the legal services to be provided and the amount to be paid for such services, you are not a client of this firm.