By: Stephen D. Richman, Esq. – Senior Counsel – Kohrman,
Jackson & Krantz
Earlier this summer (June 6, 2018), the Ohio House of
Representatives passed HB 407 which would abolish dower rights in Ohio. Since
its passage in the House, the bill has been introduced in the Ohio Senate, but
according to the Ohio Legislature website, it has yet to be assigned to
committee.
How many other states still have dower?
Besides Ohio, there
are just two (2) states that still recognize traditional dower rights: Arkansas
and Kentucky. A number of states that have abolished dower, however, retain effective
spousal protections. For example, while New Jersey formally abolished dower in
1980, each spouse in that state retains a statutory right of possession in
their principal residence after the death of the other spouse.
What is dower?
Generally speaking, dower rights are rights in part of a
spouse’s estate, provided by law to the surviving spouse for his/her support.
Historically, dower rights were limited to a wife’s rights in part of her
husband’s estate, but most states over the years extended these rights to apply
to a husband upon the death of his wife (sometimes known as “curtesy”); and
later, to be gender neutral, redefined dower to apply to spouses, without
husband and wife designations.
In Ohio, dower is an estate for life to a surviving spouse in
one-third of the real property that the decedent spouse owned at any time
during the marriage.
In effect, this provision allows the surviving spouse to receive one-third of
rents or profits from such real estate for the rest of the surviving spouse’s
life. Currently, the only way to extinguish dower rights in Ohio are: 1)
death; 2) divorce and 3) voluntary, written release of dower (at each property
transfer transaction).
Why was dower created?
Dower rights date back to the middle
ages. Some historians claim dower was created to provide property to widows and
widowers who were not part of the royal bloodline.
Others claim that the origin of
dower centers around helping women, who years ago were not permitted to own
property; and afterwards, as a means to help support the many women who were
not part of the workplace due to discrimination, social norms…
Regardless of its origins, most
commentators (including title companies, real estate attorneys, real estate
trade organizations, legislators and others) agree that dower is a sexist,
archaic, superseded and troublesome doctrine that should be abolished.
Succinctly stated by Ohio Representatives
Jonathan Dever (R-Madeira) and Bill Seitz (R-Cincinnati), the sponsors of HB
407, dower should be abolished because it is “antiquated and the largest cause of bad title, creating the inability
to sell real estate because marital status or release of dower were omitted
from a deed or mortgage.”
What
often happens, for example, is that “Spouse A” refuses (or is unavailable) to
release their dower interest (by a simple “sign off clause” in a deed or
mortgage) when “Spouse B” attempts to sell or mortgage property owned by Spouse
B. As a result, the title insurance company will not insure title (or will
insure, but only with an exception for dower rights), and the grantee or lender
will usually walk away from the deal, not wanting to risk “sharing the profits”
with Spouse A, after the death of Spouse B.
Moreover,
those calling for abolishment of dower are quick to point out that simply,
dower is no longer necessary in the current real estate and legal system in
Ohio (and other jurisdictions). For example, Ohio and other states now provide
spousal protection by virtue of laws such as:
1) Ohio’s elective share statute (O.R.C. §2106.01) which basically allows the spouse to elect, in lieu
of what a will provides, an automobile and support allowance, plus one half of
the net estate (unless two or more of the decedent’s children or their lineal
descendants survive in which case the surviving spouse would receive one-third
of the net estate);
2) Ohio’s
domestic relations law (O.R.C. §3105.171) which basically provides that any
property acquired during the marriage is a “marital asset” subject to equitable
division during a divorce or dissolution, regardless of which spouse holds title;
and
3) Ohio’s
statute of descent and distribution (O.R.C. §2105.06) which basically provides
a road map for who gets what in an estate, when there is no will, with the
spouse at the top of the chart.
Critics
to abolishment of dower (in Ohio) point out that without it, one can totally
“disinherit” a spouse in Ohio. This claim is based upon the fact that Ohio’s
elective share and descent and distribution statutes can be effectively
circumvented with elaborate trust-based estate plans. However, proponents of
abolishment counter that maintaining the existence of dower, as a practical
matter will not effectively solve this issue. States that have wanted to avoid spousal
disinheritance have simply made an exception to their elective share statutes
to apply to more than just the “probate estate.” Moreover, non-real estate
assets such as stocks, 401K accounts and insurance products exceed more
traditional real estate holdings these days, and those that hold real estate
usually do so via a limited liability company vs. individual ownership. In
other words, very little property is held individually that dower would attach
to, and few surviving spouses could live off of a dower interest in such
property.
What would
happen to dower rights that accrued prior to the date of any abolishment
statute?
The
repeal of dower would not adversely affect a surviving spouse’s right to dower
that was elected or that vested before the effective date of the act.
What are the next steps?
Having passed in the Ohio House, it
is now up to the Ohio Senate and the Governor of Ohio. While not yet before a senate
committee for testimony, the bill is expected to be passed by the Senate and
signed into law before the end of this year. Even though the Ohio House and Ohio
Senate are not always on the same page, if the overwhelming support the bill
faced in the House is any indication (the bill was passed 66-1, with 25
co-sponsors), this prediction by abolishment proponents is likely to become
true.
Bottom Line?
As stated by Charles “Chip”
Brigham, Secretary/Treasurer of the Ohio Land Title Association in his
testimony to the Ohio House:
“Dower is an
archaic reminder of our agrarian past. It has little present substantive value….
It remains a bane to real estate professionals and imposes unnecessary time,
cost, and expense on homeowners … It’s time to give dower a well-deserved
demise.”
On
the other hand, perhaps it is also time to consider filling what some consider
a void in Ohio’s spousal protection laws, by modifying the elective share
statute to include revocable trusts (as in South Carolina), or by granting each
spouse a statutory right of possession in
their principal residence (after one spouse dies) without regard as to whether
or not such residence is part of the probate estate of the decedent (as in New
Jersey).
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