Does Obergefell Spell the End of Dower?

I saw this article from mlive, noting that there are 132 Michigan laws that reference the word “wife,” 149 sections that use the word “husband.”  And that doesn’t even include the terms “widow” and “widower.” Plus what about the written policies of the various state agencies?

Won’t it be interesting to see how all this is cleaned up?  But from an estate planning and elder law perspective, there really isn’t that much that fundamentally changes – or at least that I can think of at this time.  In most situations, rights accrue to a spouse of either gender.  The U.S. Supreme Court decision in Obergefell simply expands the protections to married partners to married same sex couples.

A notable exception of course is Michigan’s dower laws.

Dower has been an odd duck for a long time.  Michigan is one of the last states with dower, and the only one that still grants dower rights exclusively to women.

The premise of dower is that real estate that a married male person owns is encumbered by the possibility that he will predecease his female spouse at which time she will have certain rights that become exercisable.  The existence of these potential rights requires those of us doing estate planning to always remember to have the wife sign off on deeds of conveyance, even when the title of the property is only in the husband’s name.

As the law is currently written, it seems it will now be possible to have a married couple neither of which has dower rights; and a married couple both of whom have dower rights.

The constitutionality of dower has been suspect for years.  In fact, it was challenged under the Michigan constitution in 2008, at which time the Michigan Supreme Court chose not to decide the case and by doing so allowed dower to continue.  With the U.S. Supreme Court ruling in Obergefell, we must assume that something will have to give.  Either it goes away altogether or becomes gender neutral.  One path would mean we can stop worrying about it, the other would mean we always have to worry about it.

One important consideration in the process of deciding what happens to dower is the fact that Michigan law allows people to “cut out” their spouses at death using simple revocable trusts.  Michigan’s position on using estate planning documents to cut out a spouse is somewhat extreme.  At least for women, dower rights have served a protective role, alerting a woman that something may be afoot when she is asked by her husband’s lawyers to sign deeds to his trust.   We may want to consider this benefit when deciding the future of dower rights.