Dower Rights in Ohio
Written by: Robert DiCuccio, Esq.
Unlike many states, Ohio still recognizes an archaic property concept known as dower. Dower refers to the interest that a spouse acquires in real property owned by the other spouse during the marriage. This is codified in Ohio Revised Code §2103.02. Under this statute, a spouse is endowed with an estate for life in one-third of the real property owned by the other spouse during the marriage. During the marriage, this dower interest is “inchoate,” meaning it does not vest unless the owner-spouse dies first. Once vested, dower entitles the surviving spouse to one-third of any rent or profit generated by the real estate during his or her life. Dower rights are designed to prevent the potentially unfortunate situation of a widowed spouse having no assets upon the death of their consort, leaving them with no place to live or means to acquire new property. Thus, dower rights serve as a protection for a widowed spouse.
How long does Dower Rights Last?
The general rule is that dower rights terminate in three situations: (1) upon the death of the owner-spouse, (2) upon divorce, and (3) when the spouse releases dower. There are exceptions to this general rule. Ohio’s dower statute sets out the only two ways a dower interest continues after the death of the owner-spouse: (1) where the owner-spouse conveyed the property during the marriage and the non-owner, surviving spouse did not relinquish his/her dower interest; and (2) where the property was encumbered by a mortgage or other lien, and the surviving spouse did not relinquish his/her dower interest. Unless one of these two limited situations exists, the dower interest terminates upon the death of the owner-spouse.
Termination of Dower Rights
Dower rights also terminate when the holder voluntarily waives them. This commonly occurs when a couple finances a home purchase, as lenders typically require the non-owner spouse to release dower before issuing a mortgage. Without a release, if the borrower defaulted, the spouse could assert the one-third dower interest against the lender in a foreclosure. This waiver must be in writing, and typically occurs when the spouse signs the mortgage. A release is also customarily obtained when the property is sold or transferred to a new owner. Without this release of dower rights, the new owner would take title to the land subject to the one-third interest of the other spouse. If these rights were not released, the presence of the spouse’s dower rights to the land would greatly reduce the value of the land to the new landowner, usually by significantly more than one-third of the value of the land, as the new owner must share the property with another person.
Effect of Abandonment and Adultery
Ohio law also provides for a situation in which a party is barred from asserting their dower rights. This is codified in Ohio Revised Code §2103.05, which reads “A husband or wife who leaves the other and dwells in adultery will be barred from dower in the real property of the other, unless the offense is condoned by the injured consort.” Thus, if one spouse commits adultery and lives with a paramour, that spouse may not later assert his or her one-third dower interest. This statute is most likely to apply where the parties have separated in practice but never undergo formal divorce proceedings.
Dower Reform
Finally, dower is a highly criticized concept. The concept of dower dates back to the Middle Ages, and Ohio is one of the few remaining states to recognize it today. One argument in favor of abolition of dower is that it frequently results in title defects on land. The recognition of dower in Ohio requires both spouses to sign all real estate documents, even though only one of them holds title. If the spouse holding dower rights does not sign any of these documents, it can cause administrative headaches in determining who owns what interests in the land. Curing these title defects can be incredibly expensive and time consuming. Another argument for the abolition of dower is that dower rights are no longer effective. This is because the most common form of property acquisition is through a mortgage loan, and as stated previously, lenders almost always require the spouse to release dower before granting a mortgage. Additionally, it is increasingly uncommon for a couple to title real property in only one spouse’s name, further limiting dower’s practical effect. While many states have already abolished dower rights, and more states continue to follow this trend, it is unclear how Ohio will react in this debate. There have been attempts to reform or abolish Ohio’s law on dower, but as of today, the law still stands.
Like most areas of law, dower can have many hidden exceptions that may complicate your case. If you have any questions about dower rights or any other property rights, please contact an attorney at Katz DiCuccio, LLP today for a consultation.
This article or any communication made through this website is for general information purposes only. Nothing conveyed through this article or website should be taken as legal advice and under no circumstances constitutes an attorney-client relationship.
