Until very recently, Michigan had the distinction of being the only state in the union to recognize dower rights in a wife, but not reciprocal rights in her husband. On January 6, 2017, Governor Snyder signed into law SB 558 and SB 560 abolishing these rights. These bills will take effect 90 days after signing.
If the word “dower” reminds you of “dowry,” it’s because they’re from the same root, dating from the days when women could not legally own property. Dower rights allowed women the use of their husbands’ real property during their own lifetime. If you have ever wondered why a deed of real property might reference “John Smith, a married man,” that’s an allusion to Mrs. Smith’s dower rights, putting potential transferees on notice that Mrs. Smith would need to sign off on a transfer of the property.
Relatively few women in Michigan exercised their dower rights, and the laws granting them might have remained in place, but for the decision of the U.S. Supreme Court in Obergefell v. Hodges and DeBoer v. Snyder. This decision held that states must license marriage between two people of the same sex and must recognize a marriage between two people of the same sex performed in another state. All of which raised the question: how, if at all, would dower work for a woman who was married, not to a man, but for another woman?
Same-Sex Marriage and Michigan Dower Rights
Michigan statute and case law regarding dower rights were written in such a way that it was clear that they would not apply to same-sex marriage. A group of Michigan legislators attempted without success to develop some gender-neutral form of property interest. The Real Property Section of the State Bar of Michigan had reservations about the effort, citing the possible constitutional issues inherent in creating a new property interest, as well as the complication of title issues. Due in large part to these practical objections, there was insufficient support for a gender-neutral makeover for dower.
The next logical step was to consider abolishing statutory and common law dower from the Estates and Protected Individuals Code (EPIC) and eliminating the requirement that dower rights be addressed in Michigan divorce judgments. This is what SB 558 and SB 560 accomplish. There is a limited exception, preserving dower rights of a widow whose husband died prior to the effective date of these bills.
What the Abolition of Dower Means for Michigan Residents
As a practical matter, the abolition of dower rights in Michigan will probably not affect most individuals very much. The change in law slightly simplifies the transfer of real estate for married men who own real property in their sole names. Aside from that, the chief benefit of the change in the law is that it brings Michigan more in line with the realities of life in the 21st century and the laws of other states.
It remains to be seen what effect this might have on title insurance company requirements when Michigan real estate is conveyed and probate court procedures/documents. Stay tuned.
If you have any questions on Dower rights, please contact Karen Stewart at 248-735-0900.
Excerpts from Estate Planning & Elder Law Services Newsletter, January 2017.