Michigan
recently repealed widow’s dower rights going forward after a long history of granting dower to widows.
The
concept of dower rights dates back centuries and was intended to protect a surviving
widow following her husband’s death. The widow could elect to retain one-third of (her
deceased husband’s real estate that her deceased husband had held during their
marriage. This included all real estate brought into the marriage and acquired
during the marriage, whether by purchase, gift or inheritance. In Michigan, dower rights were recognized in
common law, as well as in the Michigan Constitution, statutes, and land title
standards.
One
of the consequences of dower rights in Michigan was the statutory provision
that a real estate deed show the male seller’s marital status on the document,
in order to identify the spouse as having a potential dower right in the
property being sold. Additionally,
language needed to be included in deeds addressing the spouse’s dower rights in
the property. If this was not addressed
on the deed, it became an issue when the husband attempted to sell the property
and created a cloud on the title.
Because of this, although dower rights were considered inchoate
(incomplete) until the husband’s death, the presence of dower rights prevented a
husband from selling or transferring property without his spouse’s permission and completely
disinheriting his wife. This was the
case even if the wife was not an owner of the property. It also created an issue when the husband
attempted to mortgage the property. Whether
dower should be applied and how to handle it also became a unique issue in the
case of same-sex marriages in Michigan.
Legislation
to abolish dower in Michigan had been presented to the legislature many times,
but did not pass and until recently, Michigan was the only state to continue to
recognize this archaic concept. However,
since the United States Supreme Court’s landmark decision in 2015 in Obergefell v. Hodges, holding that
states must license same-sex marriages, Michigan’s dower was put in question
again since it applied only to “wives” and not to “spouses.” Rather than extend the protection to husbands,
the Michigan Legislature voted to abolish dower rights. On January 5, 2017, Governor Rick Snyder
signed into law a package of bills that formally abolished dower rights in the State
of Michigan. The legislative package
consisted of House Bill 5520, Senate Bills 558 and 560. They are now Public
Acts 378, 489 and 490 of 2016. The new
law took effect April 6, 2017.
This
means that a widow will no longer have the option to elect the dower share when
her husband dies, unless he died prior to April 6, 2017. It also means that a wife should no longer
have to join in the signing of a deed for property owned solely by her spouse. However,
while Michigan works out the kinks with the new laws, it may make sense to
still address dower rights in a deed, especially if the property was conveyed
to the husband while the spouses were married and before the abolishment of
dower. Additionally, the abolishment of dower does not affect or alter
Michigan’s laws regarding “homestead”, and so a spouse may still be required to
sign the mortgage for their homestead property, depending on whether the
mortgage is granted to secure debt which was not incurred in the purchase of the
property.
If
you have any questions about dower rights, please contact us.
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