A look at dower rights and how they're changing to reflect a shifting society
As the United States moves slowly towards a more nuanced and inclusive definition of equality, it's leaving behind the legal vestiges of a harsher past. Dower rights are one of these vestiges. A legal concept from a time when married women were not allowed own property, dower was intended to provide for a widow and her children after her husband’s death, and to protect her from being disinherited by her husband.
Understanding dower rights
Often confused with dowry, which is the property gifted to the groom by the father of the bride to provide for his daughter’s care, dower exists to guarantee a widow rights to a portion of her husband’s estate after his death. It was intended to see that the widow and her children would be cared for, and to prevent men from disinheriting their wives by selling off their property.
Prior to the mid-1900s, women experienced the equivalent of a civil death upon marriage, being treated as perpetual juveniles. Upon uttering the fateful words ‘I do’, the legal ownership of all of her possessions was transferred to her husband, his to do with as he pleased. She was not legally allowed to acquire or sell property on her own.
This left her completely vulnerable to his financial decisions. Although couples chose how to balance financial decision-making within the bounds of their own marriages, legally the man had all authority. Despite his power, he did have a legal obligation to provide for his wife and children, and dower rights were one method of enforcing this.
Even if a husband died intestate, that is, without leaving a will, the widow could call upon her dower rights to claim a portion of his estate, typically a one-third interest. If he tried to cut his wife out of his will, she had the option to deviate from the will and demand her dower.
Dower rights are inchoate meaning that they exist, but are not active until the husband’s death. This meant that the husband could still sell property, but was still responsible for his wife’s interest in that property. In states that recognize dower, house sales can be complicated because of the wife’s interest, even if her name isn’t on the deed.
Dower rights today
Most states are rewriting or removing dower laws for two reasons.
Gender-specific laws are now considered to be unconstitutional, forcing most states to replace them with uniform divorce and distribution laws. As women were allowed to own property even when married, the concept of curtesy rights came to represent a husbands’ right to a portion of his deceased wife’s property to provide for their children.
Additionally, as the nature of wealth changed, widows were getting more inheritance through other means. Dower rights are limited to real property, and do not include life insurance policies, retirement funds, stock portfolios and other means of generating wealth. This means that more often than not, the widow would choose to pass up her dower rights in favor of a more even division of her husband’s estate.
In states that do recognize dower as one of the marital rights, they still perform the function of preventing the sale of property without the spouses’ permission. Dower rights are considered to be dissolved with divorce, and can be voluntarily released by the spouse. This is a decision that should not be made lightly, as it can have dramatic financial consequences. As legal Expert on JustAnswer LawHelpNowexplains:
“The law does allow for and recognize such waivers made under valid circumstances: Missouri Revised Statutes § 474.120. However, signing such a waiver is a decision only to be made upon serious reflection in the context of a solid and stable marital union. In other words, with even a hint of suspicion concerning the future of your marriage, signing the proposed waiver would be extraordinarily foolish, to put it bluntly. The final decision is yours alone to make. All I can urge, however, is to put your interests foremost rather than risking your future security.”
As with any other legal matter, you should always consult with a lawyer before making decisions regarding your dower rights. There is no replacement for a detailed and contextual understanding of the laws that apply to your situation.
There is a certain irony to the idea that these kinds of legal protections are being removed in part because they are seen to unfairly favor women. As women move closer to true equality in this culture, though, they no longer have the same need for these kinds of legal training wheels.
For clarification on dower rights or other family law questions, the qualified legal Experts on JustAnswer are an affordable alternative to paying by the hour.
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