Dower Rights in Ohio
Written by: Robert DiCuccio, Esq.
Unlike many states, Ohio still recognizes an archaic concept referred to as dower. Throughout the life of a marriage, either spouse could purchase real property. Dower rights refers to the property rights that one acquires when their spouse purchases property during marriage. This is codified in Ohio Revised Code §2103.02. Under this statute, a spouse receives a one third interest in real property acquired by their consort during marriage. In addition to the right to live on the land, dower also gives the spouse the right to receive one third of any rent or profit generated by the real estate during their 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 to 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 mortgage, etc., and the surviving spouse did not relinquish his/her dower interest. Unless one of these two limited situations exist, 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 often happens when a party uses a mortgage to buy a house, as lenders or banks often require that the spouse waive their dower rights prior to issuing a mortgage. This is to prevent the landowner from defaulting on the mortgage, their spouse retaining their one third interest in the land and asserting this interest against the lender foreclosing on the property. This waiver must be in writing, and typically occurs when the spouse signs the mortgage. Waiver also often occurs when the property in question is being transferred to a new owner directly. Without this waiver of dower rights, the new owner would take title to the land subject to the one third interest of the other spouse. In the event that these rights were not waived, 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 they now must share that land 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, in the event that one spouse commits adultery, and lives with their paramour, they may not later assert that they are entitled to their one third interest. This statute is likely to be used in the event that there is a practical separation in which the parties are no longer living together, but never undergo formal divorce proceedings.
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, though one of them is not technically the owner. In the event that 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, it is almost always required that the spouse waive their dower rights before the lender will grant a mortgage. Additionally, dower rights have lost effectiveness in that it is becoming increasingly uncommon that a couple place ownership of the land in only one of their names. 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, Pryor & DiCuccio, LLP today for a free consultation.
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