Dower Abolished in Michigan
Dec. 28, 2016
At long last, the ancient legal concept of dower has been abolished in Michigan.
As a direct result, Michigan real estate transfers just became less complicated thanks to the efforts of Senator Rick Jones, the sponsor of Senate Bills 0558, 0559, and 0560. This bill package, just signed into law by Governor Snyder yesterday, eliminates dower rights in Michigan, bringing us into the modern era of property division and ending the legal debate about dower in the post-Obergefell era.
Dower is defined in Black’s Law Dictionary as:
A species of life-estate which a woman is, by law, entitled to claim on the death of her husband, in the lands and tenements of which he was seised in fee during the marriage, and which her issue, if any, might by possibility have inherited.
Clear as mud, right?
Most people encounter the archaic property right of dower when they are seeking to buy or sell real estate. If a man owns a parcel of property before his marriage, but marries while he owns that property, he has created a dower right to the property for his new wife. In order to transfer the property, he must obtain his wife’s signature giving-up her dower right to the property, even if the wife has no equitable interest in the property. This is why in Michigan, divorce judgments have always extinguished this property interest.
Dower rights are a right of a wife to her husband’s real estate. The male equivalent, known as curtesy, was eliminated in 1903, but it likewise provided husband with a right to his wife’s real estate. In a world where same-sex marriage is legal, the status of dower and curtesy rights becomes uncertain relative to gender.
Dower rights have changed throughout history, as have gender roles, but the general concept has been to provide support for a wife after the death of her husband. In the Middle-Ages, this was accomplished by giving the wife a sum of money on her wedding day that belonged to her as an individual, not her husband. By the time the Magna Carta was drafted in 1215, dower had been reduced to its modern form: a life estate in one-third of the lands owned by the husband.
Prior to this new law, Michigan’s dower rights provided a woman with a life estate in one-third of any real property owned by her husband during their marriage. A life estate is the right to a piece of real property until your death, including the right to any income generated from the property. Dower rights have not been a contested issue for some time, as the rights of a surviving spouse under the Estates and Protected Individuals Code far exceed the value of the dower right.
The same is true of divorce. Michigan is an equitable distribution state for marital property. Rather than simply being entitled to a life estate interest in a portion of the husband’s real property, a spouse is entitled to an equitable distribution of all marital property, including real estate, bank accounts, personal property, and retirement assets. There are limited times in which a dower right would be more valuable than an equitable distribution.
Specifically, in a case where a husband owns a great deal of real estate prior to the marriage, and acquires relatively few assets during the marriage. Under the laws of equitable distribution, that real estate is likely out of reach in divorce proceedings, although there are exceptions to the rule. Under the dower regime, a life estate in one-third of the real property would be more valuable than merely an equitable share of the few assets acquired during the marriage.
The elimination of dower rights eliminates a long-standing gender bias in Michigan law and finalizes the transition to the equitable distribution that characterizes modern divorce. It’s no longer a paternalistic system where the state provides for the protection of women, but instead a system that equitably divides the marital assets for the benefit of both spouses.