If you have ever participated in a real estate transaction, you might have noticed that a male individual who is transferring property by deed must indicate his marital status. The reason that this identification previously was required was based on the legal principle of "Dower." Dower dates back to English common law and was adopted in Michigan as law in 1846. The law of "Dower" provides that a woman, solely as a result of her being married to her husband, is entitled to an interest in his real property. This law was enacted to make certain that wives were not impoverished by their husbands' deaths as the dower interest attached to all real property acquired by a husband during the course of the party’s marriage – even property that the husband may have owned in his name alone. While Michigan law granted dower rights to widows, but not widowers, the same protection did not exist with respect to male spouses concerning properties owned by their wives.
The U.S. Supreme Court, within the last few years, decided to set aside state bans on same-sex marriages in the case of Obergefell v. Hodges. The question then became in the case of a same-sex marriage, who is the "widow" and who is the "widower?" If two women are married, is either of them a potential widow or, in the case of two men, is neither?
Effective this spring, the Law of Dower is being officially terminated in Michigan. The state legislature's adoption of Public Acts 378, 489 and 490 of 2016, which became effective March 22, 2017, and April 6, 2017, eliminated dower for women whose husbands die after the effective dates of these Acts. However, even though dower rights have been eliminated, one should not assume that a spouse does not have an interest in his or her separately owned property. Likewise, realtors and lenders still may continue to require the signatures of both spouses – even when the property is separately held – and will be conscious of potential issues related to existing dower interests held by widows.
In addition to the Law of Dower, there are other statutes and laws in Michigan, like other states, where property rights between spouses are determined. For example, in the context of a divorce, "marital property" subject to division generally includes property acquired by either spouse during the marriage (except by gift or inheritance), even if title is only held by one spouse.
In addition, courts have the authority to order one spouse to convey his or her separate property to the other in some cases. So, even if a husband owned all of the couple's combined assets in his own name, and a wife owned nothing, a judge in a divorce proceeding could order the husband to convey a portion of his separately owned property to the wife. This would also apply in instances where the wife owned all of the combined assets in the case of same-sex marriages.
Until the estates of deceased husbands who die prior to the effective date of the Dower Law's repeal in Michigan have been fully administered and existing dower interests extinguished, individuals should continue to act prudently and obtain both spouses' signatures for any transaction involving real estate. However, as the effective date of the termination of dower becomes a distant marker in our rearview mirrors, the historical Law of Dower and its effects on property ownership and transfers of property in Michigan will eventually have no impact.