On June 6, the Ohio House of Representatives passed HB 407, which would abolish dower rights in Ohio. Dower rights relate to the interest that a surviving spouse holds in the estate of a deceased individual. Since its passage in the House, the bill was introduced in the Ohio Senate on June 11, but it has yet to be assigned to committee.
Besides Ohio, there are just two 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 or 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”). Later, such rights became gender neutral, redefining 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 death, divorce and 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; afterwards, it might have been a means to help support the many women who were not part of the workplace due to discrimination or social norms.
Why the call for dower to be abolished?
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real estate attorneys, real estate trade organizations, legislators and others – agree that dower is a sexist, archaic, superseded and troublesome doctrine that should be abolished.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:
- Ohio’s elective share statute (O.R.C. §2106.01) which 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);
- Ohio’s domestic relations law (O.R.C. §3105.171) which 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
- Ohio’s statute of descent and distribution (O.R.C. §2105.06) which 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 “disinherit” a spouse. 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, 401(k) 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 instead of individual ownership. In other words, very little property is held individually to which dower would attach, and few surviving spouses could live off 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 2018. 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.
What’s the bottom line?
As stated by Charles “Chip” Brigham, Secretary and 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).
To learn more, contact Stephen Richman at 216.736.7203 or sdr@kjk.com.