Michigan Legislature Abolishes Dower

Governor Rick Snyder signed legislation on January 6, 2017 abolishing a surviving wife’s dower right in her deceased husband’s property, making Michigan the final state to eliminate this law. However, some states still retain a form of dower, but in order to prevent discrimination on the basis of sex, they offer a reciprocal right to a widower in his deceased wife’s property.

The concept of dower in Michigan, which dates back to 1787, granted a widow a life estate in one-third of her deceased husband’s real property. Dower historically was used to provide for a widow upon her husband’s death, in particular at times when women could not own property, and when property passed to a man’s first-born son, not his wife, upon death.

This concept has become nearly obsolete with the introduction of statutory schemes to ensure protection of a surviving spouse: If a person dies without a will, the surviving spouse is entitled to an intestacy share, which at a minimum is the first $100,000 of the decedent’s estate plus one-half of the balance. If a person dies with a will but it does not adequately provide for the surviving spouse, the surviving spouse can claim, among other things, his or her “elective share.” An elective share is equal to one-half of what the intestacy share would have been, reduced by one-half of those assets already received by the surviving spouse as a result of the decedent’s death, e.g., as beneficiary of a life insurance policy.

The abolishment of dower is not a surprise. There has been considerable chatter and speculation following the United States Supreme Court’s 2015 decision in Obergefell v. Hodges, which made marriage equality the law of the land federally. Lawmakers and practitioners wondered how the concept of dower would affect same-sex couples because the statute, as written, grants only a “widow” dower rights in the property of her “husband.” Thus, by recognizing a same-sex couple’s fundamental right to marry, the Supreme Court in a sense mandated the State of Michigan to decide whether it was going to modify dower by extending the right to all persons, irrespective of their sex or that of their deceased spouse, or to abolish dower completely. Although it may take time, the Obergefell decision will likely result in additional measures to address gender equality.

For more questions about dower or a surviving spouse’s right in the property of a deceased spouse and understanding how to designate property in an estate plan appropriately, please contact any member of the Family Law and Divorce or Estate Planning and Administration practice groups at Rhoades McKee.