(Kerrie) In a previous column you said that you could spend a whole article on the Doctrine of Dower. Well, how about it? Can you explain it?

(Jim) Sure, but just the short version.

(Kerrie) Thank goodness for that.

(Jim) Dower is one of those rights in the bundle of rights that have come down to us rooted in real property law from in feudal England. The ownership of feudal estates was obviously very important to those fortunate enough to own land and it was equally important to keep that land in the family. The land would pass down to the first-born son on the death of his father - a feudal lord. The second son was destined to go to the priesthood and the third son was sent to the military. The daughters, of course, were destined to marry someone else’s sons. But what about the widow, you ask? Well, she received a life estate in one-third of her deceased husband’s lands. This meant that she at least had a place to live out the rest of her life. This concept evolved after being transported to the new world. We no longer have feudal estates, but the idea of protection of widows and widowers has remained with us.

In Ohio, the right of dower is statutory and applies to both husbands and wives. The right is fairly broad, a bit archaic, and sometimes complicates title matters. The right of dower is found in Section 2103.02 of the Ohio Revised Code and it basically provides that a spouse has the right to a life estate in one-third of the real property of which the other spouse owned during the marriage. This applies to property owned prior to the marriage as well as property acquired during the marriage. This interest is sometimes referred to as an “inchoate” right, meaning an immature or undeveloped right, because it does not come into effect during the marriage. At the same time, one must also know that a surviving spouse’s rights in dower terminate upon the death of his or her spouse as dower is then converted to a statutory share of the deceased spouse’s estate. But there is a catch to these general rules.

(Kerrie) There’s always a catch, isn’t there.

(Jim) The right of dower survives death in two situations. A dower interest continues, or becomes “choate” if a spouse dies after that spouse conveyed real property without having the surviving spouse join in the deed relinquishing such right. This is why we have a spouse sign a deed for the purpose of releasing dower even though the spouse was never in title.

The second situation is similar and causes much confusion. The dower right matures, or is “choate,” when a married person encumbers the property by mortgage, judgment or other lien (with the exception of a tax lien) or the property is sold involuntarily, such as a foreclosure sale, and then that spouse dies without obtaining his or her spouse’s signature on the encumbrance releasing his or her dower interests. So, this is why we have spouses sign mortgages even though the spouse in not in title to the property.

(Kerrie) So, if a married person owns some land and if the spouse doesn’t sign the mortgage, the non-signing spouse retains a right to a life estate in one third of that land – and that right is superior to the mortgage holder’s lien.

(Jim) Only if the mortgagor dies.

(Kerrie) So explain when this right of dower becomes extinguished?

(Jim) Just think of the three D’s – death, deed and divorce. If a spouse who may claim a dower right dies, that spouse’s dower right passes too. If a spouse joins in the deed conveying away the property, it is extinguished. And if the couple gets divorced, the right is extinguished upon the filing of the final decree of divorce or dissolution, even if the deed remains in both their names. In fact, if the deed was held in survivorship, the law converts that survivorship tenancy into tenants in common.

(Kerrie) So now our readers know why a divorcing couple – who have not yet obtained a Final Decree of Divorce or Dissolution – cannot quitclaim his or her rights in the property to the other and be done with it. Under the domestic relations section of the code, spouses cannot by contract alter or change their legal relations, except to provide for an agreement of rights under a Separation Agreement and to provide for the support of either of them or their children during the separation prior to divorce or dissolution. So quitclaim deeds between spouses

really don’t do much other than vest the fee title in the other spouse.

(Jim) Right. The dower right still remains until that Final Divorce Decree is filed. Dower cannot be contracted away even by a pre-nuptial or “ante-nuptial” agreement. By signing a pre-nuptial agreement, a soon-to-be spouse may contract away their right to assert his or her dower right, but neither can by contract make it disappear. So, a soon-to-be spouse can promise to act a certain way in the future, but that party cannot contract away the right itself.

(Kerrie) But if the spouses are getting divorced and each must sign the other’s mortgage on the new property each is buying, the act of signing the other’s mortgage doesn’t necessarily make the non-buying spouse liable on the other’s mortgage. By signing the mortgage, the spouse is just agreeing to subordinate his or her dower interest to that of the lender. If they never get divorced and the lender forecloses, the spouse cannot claim to be ahead of the lender in priority at foreclosure sale. Only by signing the note can someone be personally liable to pay back the loan.

(Jim) Many states have abolished dower – in fact, Indiana is one of them. Other states have gone to a community property system for married couples, like California. Obviously dower is a very broad right. That’s why I always tell Realtors, if the parties are married, they both must sign. It just makes it easier.

(Kerrie) Dower is not really all that complicated, as long as we just remember that both spouses must sign all documents that may affect their rights to real property – but that’s my opinion.

(Jim) And mine.

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Jim and Kerrie Matre are married partners in the law firm of Matre & Matre Co., LPA. The firm generally limits its representation and practice to all legal issues related to real estate, construction law and corporate representation.

This article is written to introduce the reader to common real estate legal concepts. It is not intended to be legal advice to any specific party. As always, consult your attorney regarding your specific situation.

Have questions? Email them at either kmatre@matrelaw.com or jmatre@matrelaw.com