If you’re considering buying a home with a partner, or if either your property ownership or marital status could change in the future, it’s important to understand who legally owns what.
In a few states, an antiquated English common law, known as dower rights, still dictates the specifics of property ownership and inheritance. This practice originally provided for spouses who weren’t listed on property titles and in the event no will existed. Dower rights traditionally applied to wives, while curtesy rights were the analogue for husbands.
Remaining dower rights laws—still on the books in Arkansas, Kentucky, and Ohio—have largely been adapted to apply to all spouses.
There are only a few scenarios in which dower rights can be terminated: death, marriage dissolution, release of rights (one spouse signs away their claim), and, sometimes, adultery. Ohio statute also nullifies dower rights if one spouse engages in adultery—unless the other spouse condones it.
Even if you live outside of a dower rights law state, you’ll still want to know what happens to your home and other property if you get married, divorced, or you or your spouse pass away.
What do dower rights mean in practice?
Again, because dower rights are still on the books in only three states, the specifics of this concept will only impact those in Arkansas, Kentucky, and Ohio. If you’re getting a mortgage or buying and selling property in these states and are married (or your marital status changes at any point), you’ll want to talk to both your real estate agent and a lawyer to make sure you understand and are following all the rules.
For example, dower rights may prevent you from selling property unless your spouse also signs the deed, essentially signing away said rights. If they don’t do so, or haven’t otherwise waived their dower rights, the title is unmarketable, and the buyer may be able to back out.
Similarly, if you own a home and then get married, or if only one spouse’s name is on the loan, your spouse may automatically be granted dower rights to that property.
Dower rights supersede wills, meaning a spouse cannot be disinherited even if a property is willed to another individual. The surviving spouse is still entitled to a third of the estate.
Property inheritance laws in other states
If you live in any of the other 47 states, you’ll still want to be familiar with how marriage affects property ownership and inheritance. Elective share laws, for example, transfer set amounts of estate ownership following one spouse’s death to the surviving spouse (unless the survivor takes what is in the will). Some states allow for a third to one half of the estate, while others scale based on the length of the marriage.
Nine states have community property laws, which require that assets be split equally during a divorce, while common law property states (the remainder, basically) divides assets based on who owns them or earned them.
Keep in mind that each state handles this a little bit differently, so consulting a professional, such as an estate planning attorney, is well worth it.
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