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Thursday, January 5, 2017

Michigan Legislature Votes to End Dower Rights in Real Estate

Michigan has the somewhat dubious distinction of being the last state in the Union to have laws in effect that provide for the association of Dower Rights to real property. Most other states repealed any dower rights laws on their books years ago.

So what are Dower Rights?

A very good explanation of dower  and dower rights comes from a paper published by James M. Leby titled LAST ONE STANDING: MICHIGAN’S DOWER LAW . Brief excerpts from that paper below may help explain the concept:

The dower right was originally a common law creation. During feudal times, the common practice was that property passed from the husband to the eldest son, and real estate was the primary source of wealth.  The concept of a Dower provided a method of supporting a man’s wife and children after his death. The Dower gave the widow a life interest (estate) in one third of the real property owned by her husband during the marriage, from which she could support herself. This right attached to more than just the land held by the husband at his death. The wife retained dower rights even in property that the husband disposed of, unless she signed off on the transfer of the property as well.

Statutory forms of dower in Michigan stretch as far back as an ordinance from 1787. The 1787 ordinance actually provided for the widow to receive a life estate in one third of her spouse’s personal property as well as the traditional life estate in a third of his real property. Later statutes once again removed the right to take personal property.  Early forms of dower were justified partly by the fact that women could not own their own property while they were married, and thus could not build up any independent resources.  The state legislature gave women the right to own their own property in the mid-1800s; however, the legislature continued to retain dower as a means of supporting widows.

Ed. – Effectively this meant that a woman in Michigan could buy and sell real estate without her husband’s approval or sign-off; however, a man who married needs the approval and sign-off of his wife to dispose of any real estate that he owns, even if he owned it prior to the marriage, because her dower rights gave her an interest in it.

New laws abolish the Dower –

New laws that the lame duck 2016 Michigan Legislature passed and sent to the Governor for signature will abolish this last vestige of the common law practice of dowers in Michigan. From the Legislative News published on the web site

Dower Repeal (Senate Bills 558, 560 (Jones - R-Grand Ledge) & HB 5520 (Kesto, R-Commerce Township)

The three-bill package eliminates Dower and references to Dower Rights in Michigan. After the United States Supreme Court legalized same-sex marriage, Michigan's Dower Rights statute came under scrutiny by outside groups and the legislature. Specifically, the constitutionality of all gender-based laws came into question.  Since Michigan's Dower is limited to the "wife" and the requirements of Dower created transactional uncertainty and clouds on title, the preferred approach by the legislature and stakeholder groups like Michigan Realtors® was to pursue elimination of Michigan's arguably unconstitutional approach to Dower.

For those unfamiliar with Dower, upon the death of her husband, a wife is entitled to the use – during her lifetime – of 1/3 of all lands owned by her husband during the marriage.  It is important to note that Dower is an expectancy only, meaning that her rights only vest if a wife survives her husband.  As a practical matter, this right is rarely, if ever, exercised upon the death of a husband. Instead, a widow in Michigan has the alternative of electing a share of all of the property of her husband at the time of his death.  It is rarely the case that an interest in the income from one-third of real property he had owned would exceed that.

Ed. - So, what is Michigan left with after the old dower rights are repealed? Just like politicians at the national level, the Republican-led State Legislature in Michigan has repealed an existing law without providing any replacement. It may be argued that none is required due to protections provided to widows and women in general under other, more modern laws governing estates and probate and divorce and such, but only time will tell on that. The same legislature has been reluctant to deal with issues concerning non-traditional marriages, so it remains to be seen whether any new laws to protect the interests of partners in same-sex marriages will be needed or ever enacted, even if they are needed.

1 comment:

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