What is Dower (Or Why Does My Wife Have to Sign the Deed?)
Michigan remains one of the few states in the country to retain, for married women, 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). The state of Michigan has expressly adopted dower rights by statute. (Note that with the exception of excess proceeds after a foreclosure sale or payment of a mortgage by an heir in a probate proceeding, dower does not attach to personal property. Also, the male form of dower, called curtesy, was eliminated in the state of Michigan in the 1950’s).
Dower rights usually arise when a married man who owns real property (land or house), in his name alone, wants to sell it. After the title commitment is ordered and a closing is scheduled the title company handing the transaction tells the husband that they will need his wife to come in with him to sign the deed conveying title to the buyer, even though her name does not appear in the chain of title. This is necessary so as to bar her dower rights in the subject property.
Another instance where this may arise is the wife’s right of election against the will of her deceased husband, or the intestate estate of the deceased husband if he dies without having executed a will. In this instance, the wife, who may be getting very little under the will of the deceased or via intestate succession, may elect, instead, to take her dower right (i.e. assert her dower rights, and reject the share under his will or through intestate succession). This election must be made by filing an appropriate form with the Probate Court handling the estate within 63 days of the date for the presentment of claims.
By electing to assert her dower rights, she would have the right to use, for her lifetime, one-third (1/3) of the property her husband owned in his name alone at the time of his death. (Note that title to any property that they might have owned jointly, either as tenants by the entireties or as joint tenants with rights of survivorship, would automatically vest or pass to the survivor upon the death of the first spouse to die).
Another instance where dower rights may arise is where a married man, who owns real property in his own name, wants to obtain a loan that will be secured by such real estate. The bank or lending institution will often require that the wife sign the mortgage (not the underlying promissory note) so as to bar her downer rights in the property, should the loan go into default and foreclosure becomes necessary. If property was acquired by the husband, before marriage, and is subject to a purchase money mortgage, where the proceeds were used to acquire the property, the wife’s dower rights will attach to the property upon marriage but will not “trump” or come ahead of the mortgage thereon.
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 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 alternative, the Judgment of Divorce can quite often be recorded in lieu of such a deed, if it covers the title to such real property in the property settlement provisions).
It is unknown if dower rights could be asserted by one of the parties in a same sex marriage. The common law and statutes speak of the right 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 a relationship (or both) could assert dower rights. Likewise, it is unclear if either party in a male/male relationship would have dower rights. Likewise, 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)? These issues will have to be left for to Michigan legislature, or the courts, to sort out.
If you have questions about dower, 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.