Goodbye, Dower

Michigan’s lame duck legislature passed another notable statute that attempts to abolish dower in our state. “Dower” is about as obscure as it sounds, and it has little relevance in today’s society. It’s a legal concept borrowed from British common law intended to provide a widow with means of support after her husband’s death. Specifically, dower gives a widowed woman the right to a life estate in one-third of the real estate owned by her husband. (A life estate is an interest in real estate that lasts as long as the person is alive.) A woman even retained her dower rights in property sold by her husband before he died, unless the wife knowingly and willingly signed off on the property transfer.

Dower made a lot of sense when wealth was tied so intimately to real estate holdings and when women could not own property, inherit property, or have a career. But the world has changed and so has the nature of wealth and the legal rights of women. Women can own and inherit property (gasp!). And, spouses (female or male) retain legal rights under Michigan’s inheritance laws through their “elective share” of the deceased spouse’s estate if that statutory share is more favorable than the provisions that exist in the late spouse’s estate plan.

Michigan’s version of dower probably sounds a little sexist. It was. Like its British predecessor, Michigan’s dower applied only to women and afforded no equal protection to male counterparts. It was the sole gender-discriminatory dower law that survived in the United States. Because of this fundamental inequity, many have argued that Michigan’s dower rights were unconstitutional. But up until now, it survived any attacks. With the new legislation, the debate is over… almost.

A few commentators have suggested that, because “dower” is mentioned in the state constitution, only a constitutional amendment can abolish it. Under careful analysis, that argument doesn’t hold water. The constitutional reference didn’t establish dower; it simply made reference to it as a then-existing statutory right. What can be created by statute can be eliminated by statute, so the new law seems to be on solid footing. And practically speaking, it would take a special case to argue that dower should still be in effect and that it’s not discriminatory on its face.

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