For lack of a better word, dower is an “automatic” right in and to certain property provided to a spouse in the property of the other spouse, especially in death. Property includes real property and money, choses in action [a right to sue], evidences of debt [a right to repayment, like under a promissory note], and other personal property. In Ohio, dower is statutory and is found under Ohio Revised Code Section 2103.01 through 2103.09.
Ohio Revised Code Section 2103.02 provides that, “A spouse who has not relinquished or been barred from it shall be endowed of an estate for life in one third of the real property of which the consort was seized as an estate of inheritance at any time during the marriage.” A spouse’s dower interest terminates upon the death of the spouse except (1) when the property was conveyed by the other spouse prior to the other spouse’s death without the spouse consenting or (2) when the property was encumbered by the other spouse prior to the other’s spouse’s death without the spouse consenting, except in cases of tax liens.
Dower interests are terminated upon the granting of an absolute divorce in favor of or against such spouse by a court of competent jurisdiction, regardless of whether the court is located inside or outside of Ohio.
Whether they know it or not, most people have probably dealt with a dower right before, especially if they and their spouse have dealt with real property. Many married couples will purchase real estate in the name of one spouse or the other. This may be due to one of a many number of factors, such as the credit of one being much better than the other or one spouse has fears relating to creditors and feels it is safer to hold the real property in the other spouse’s name.
In these types of situations, where one spouse is the deeded owner of the real property, there are two situations that typically come into play that are driven by dower rights.
The first is that even though one spouse may not be the deeded (titled) owner to the real property, a lender will require the other spouse to sign the note and mortgage for the real property to acknowledge they are releasing their dower right in the property. This is done to ensure that upon the death of the spouse that is the deeded owner, the lender will have priority over the surviving spouse’s dower rights.
The second is that even though one spouse may not be the deeded (titled) owner to the real property, the deed conveying such real property upon sale still requires the signature of the other spouse. This signature indicates to the world that the other spouse is relinquishing their right to dower in such real property.
The dower right may seem mundane, but it is actually a very important property right that exists between spouses in both property purchased inside of a marriage and property brought into a marriage.
About Arenstein & Andersen Co., LPA
Arenstein & Andersen Co., LPA is a Dublin, Ohio law firm that provides comprehensive estate planning and probate services. Some of our legal services relating to estate planning and probate include: preparing revocable trusts, wills, powers of attorney, healthcare powers of attorney, and living wills; assisting with advanced wealth transfer strategies, including the preparation of irrevocable trusts, such as domestic asset protection trusts, charitable remainder trusts, charitable lead trusts, and life insurance trusts, along with other wealth transfer tools such as family limited partnerships; counseling clients on probate avoidance techniques to streamline and reduce the costs associated with estate administration; assisting business owners with succession and wealth transfer planning; planning for children or other loved ones with special needs to include the use of wholly discretionary trusts, supplemental services trusts, and special needs trusts to protect the beneficiary’s eligibility for public assistance benefits; advising clients on Medicaid planning and other elder care issues; representing Executors, Administrators, and Trustees with the administration of estates and trusts, including assistance with tax planning and the preparation of Federal estate tax returns, and Federal and Ohio fiduciary income tax returns; and assisting with applications for, and the administration of, guardianships for both minors and incompetents.