Michigan Legislature Eliminates Dower

In its lame duck session, the legislature passed a package of bills which eliminated dower in the state of Michigan. Dower is the interest in the real estate of a deceased husband given by law to his widow during her life. Up until now, Michigan was the only state that still granted a right to dower exclusively to surviving wives, but not to surviving husbands. Most states have already eliminated dower rights because a right available to only one sex has been held to be unconstitutional under equal protection principle.

Changes In Michigan LegislationThe bills were signed by Governor Rick Snyder on January 6, 2017 and will become effective ninety (90) days later. Therefore, as of April 6, 2017, transfers of real estate in Michigan will no longer be subject to a potential dower claim (with the exception of property owned by men who die before the effective date).

Michigan Deed

What Changes Does The New Legislation Bring?

The bills, SB 558, SB 560, and HB 5520, eliminate statutory and common law dower and remove dower from the Estates and Protected Individual Code (EPIC). It also removes dower from the required provisions of a divorce judgment, which takes effect earlier on March 22, 2017. It should be noted that the amendments include a narrow exception in order to preserve dower already elected by a woman whose husband died before the effective date, or for a woman who still has time under EPIC to elect dower in preference to taking under the husband’s will or a statutory share, as described in MCL 700.2202(2).

Following the decision of the U.S. Supreme Court in Obergefell v. Hodges and DeBoer v. Snyder, states are required to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state. Problematically, Michigan only granted dower rights to surviving wives and Michigan statute and case law are stated in terms that make clear they do not apply to same sex marriages. The State Bar of Michigan Real Property Law Section worked with the principal sponsor of the legislation, Senator Rick Jones, and the State Bar of Michigan Probate & Estate Planning Section to draft legislation to avoid the necessity of litigation to clarify the application of the DeBoer decision to dower. The newly signed bills remove that uncertainty and also remove dower as a longstanding issue in real property title and transfers.

Michigan eliminates dowerEfforts to substitute a new form of gender-neutral property interest or required notice for all transfers of real property by a spouse, failed to gain broad support in the legislature. The Elder and Disability Law Section and Real Property Section of the State Bar of Michigan opposed those efforts as creating a new property interest, being questionable as a constitutional matter, and introducing more difficult title issues given the lack of any uniform system to prove or disprove the marital status of a person transferring an interest in property.

As a practical matter, dower was almost never exercised in Michigan. Although there is a case to be made that the narrow protections in the new legislation will violate equal protection, the exceptions serve to preserve a widow’s rights that have either already vested or would vest by timely election, avoiding a challenge on other constitutional grounds. Essentially, this new legislation eliminates the need and expense of clearing title issues raised by underwriters for rights that most attorneys agree would never be exercised.

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