Dower

Frequently, dower is an issue in a property transaction. In this article, I will disclose what dower is, as well as offer ways in which parties to a transaction may effectively address the issue. I will be discussing dower in some detail, because understanding dower is critical in avoiding a potentially burdensome title problem.

The right of a widow to dower is defined in Section 558.1 of the Michigan Compiled Laws, which reads: "The widow of every deceased person, shall be entitled to dower, or the use during her natural life, of 1/3 part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof."

I will break this definition down, by segment, so you can obtain a clear understanding of dower. Let's start with the first segment the widow of every deceased person. This is very straight forward and should not confuse anyone. The widow is the surviving spouse of the deceased husband.

Now, let's look at the second segment shall be entitled to dower. The word shall is a command by the state legislature, and this command means that there are no exceptions to the rule: The widow is entitled to her dower rights in the lands of her husband. In other words, there is no wiggle room with dower; it is a bright line rule of law in Michigan. The next portion or the use during her natural life refers to a life estate interest held by the widow. This life estate interest is exclusive to the widow and will terminate upon her death.

Next, let's examine the segment of 1/3 part of all the lands whereof her husband was seized of an estate of inheritance. For the husband to be seized of an estate of inheritance, he must hold title to land in one of two ways: (1) either individually, such as Bob Jones, a single man, or (2) as a tenant in common with another individual, such as Bob Jones and Mike Smith, as tenants in common. The husbands interest is held in fee simple, which is what qualifies his interest as an estate of inheritance. You must understand that dower does not attach to property in which the husband holds title as a joint tenant. *(Reference previous articles concerning the fee simple; the tenancy in common; and the joint tenancy)

Next let's examine the segment at any time during the marriage. This segment is very simple. Any property that the husband owns as a tenant in common, or property of which the husband owns individually at the moment of marriage will be subject to dower. This also includes property that the husband acquires as a tenant in common, or property of which the husband acquires individually during the marriage. So dower attaches to before and after acquired property interests of the husband, as above discussed.

Finally, let's examine the segment unless she is lawfully barred thereof. There are two basic ways in which a wife's dower can be lawfully barred. These are (1) by voluntary conveyance, and (2) by execution of a prenuptial or post nuptial agreement.

By far, the most common way to bar dower is by a deed conveyance from the wife. The wife usually signs the deed of conveyance along with the husband in a sale transaction. The wife may also bar her dower by a separate conveyance directly to the grantee of the husband. As an example, let's say that Bill Smith, a married man, is the sole owner of Blackacre. Bill Smith then executes a deed to Bob Jones, without Bill's wife joining in the execution of the deed. Six months after this conveyance, the spouse of Bill Smith executes a deed to Bob Jones, which deed recites that it is given for the purpose of barring her dower right. This conveyance will effectively terminate the dower interest of the spouse of Bill Smith. Simple!

The husband and wife may also enter into a prenuptial agreement prior to marriage, or a post nuptial agreement subsequent to marriage. Generally, if the agreement clearly sets forth that the wife, or soon to be wife, voluntarily releases all dower rights in and to her fiance's or husband's present or future lands, it will lawfully terminate the dower interest of the wife. A strong note of caution: prenuptial and post nuptial agreements may be attacked on grounds of duress, undue influence, or nondisclosure by the fiance or husband. As a result, these agreements must be reviewed by competent legal counsel before making a determination as to the validity of the agreements.

As a general rule, title companies will require the wife to sign the deed, along with the husband, even though a nuptial agreement exists. It is not wise and is often unnecessary for the title company to police a nuptial agreement, as the wife will usually consent to signing the deed. This is a smart move by the title company, because her voluntary signature is a current barring of her dower right, which demonstrates that the wife intended to bar her dower right as to the specific transaction. I don't mean to dwell on this point, but there is no need to get a team of lawyers involved when the wife is offering to sign the deed; her execution of the deed simply circumvents the nuptial agreement.

How did dower come to be? At common law, and still today, a widow was not the heir of the deceased husband. In an attempt to protect the interest of the surviving wife, the estate of dower was created. Now, I will clarify this statement further. Dower attaches before the death of the husband, and this is known as dower inchoate. To simplify, the dower right of the wife attached immediately to all interests of which her husband was seized of an estate of inheritance.

When the husband dies before the wife, the inchoate dower interest of the wife is transformed, by operation of law, to dower consummate. Dower consummate is really an estate in expectancy; there exists a condition precedent, as the wife must survive the husband to realize the full benefit of dower.

As an aside, I must speak to the interest of the husband at common law. The estate of curtesy was afforded the husband. Curtesy was a life estate interest in all the lands in which the wife held a freehold interest. Curtesy differed from dower in two ways: (1) the husband was entitled to a 100% life estate interest, not just a 1/3 interest as in dower, and (2) the husband was only entitled to curtesy if the husband and wife had a child. The child did not have to survive; it only had to be born alive. Curtesy is the common law correlative of dower. Curtesy has been abolished in Michigan, so the good news is that we as real estate professionals only need concern ourselves with dower.

Conclusion:

I write of dower because my experience has shown me that dower is one of the most misunderstood concepts of property law. Dower comes to us from the common law; the common law being a fascinating and historical basis of property law.

-los lonely boy-