The Akron Legal News

Proposed legislation would eliminate antiquated real estate dower law in Ohio

KEITH ARNOLD
Legal News Reporter
Published: December 18, 2017

A new bill before House committee members targets a vestige of common law that regularly stymies modern-day real estate transactions throughout the Buckeye State.

House Bill 407, proposed by Cincinnati Republican Reps. Jonathan Dever and Bill Seitz, would eliminate the single greatest title defect to Ohio real estate - dower rights.

"Ohio remains only one of three states to still have dower in its laws," Dever told fellow House members seated for the Civil Justice Committee during testimony last week.

He explained that a dower right establishes a spouse's claim to a life estate in one-third of the real property owned by the other spouse at any time during the marriage.

"The practice of dower is antiquated, dating back to 1310," Dever continued. "It provided for the maintenance and care of a widow in a time of no social service protections.

"This European tradition was designed to provide for one's daughter upon marriage in the event she lost her spouse. In those times, land, titles, and estates often followed the oldest heir, leaving the widow destitute."

HB 407 would make an allowance for the current law's provisions pertaining to a spouse's dower interest vested before the bill's effective date.

Specifically, the provisions endow a spouse who has not relinquished or been barred from it, an estate for life in a third of the real property of which the consort was seized as an estate of inheritance at any time during the marriage.

According to analysis provided by the Ohio Legislative Service Commission, such dower interest would terminate upon the death of the consort except to the extent that any such property was conveyed by the deceased consort during the marriage, the surviving spouse not having relinquished or been barred from dower in the property and to the extent that any such property during the marriage was encumbered by the deceased consort by mortgage, judgment, lien except tax lien, or otherwise, or aliened by involuntary sale, the surviving spouse not having relinquished or been barred from dower in the property.

"If such property was encumbered or aliened prior to decease, the surviving spouse's dower interest must be computed on the basis of the amount of the encumbrance at the time of the consort's death or at the time of such alienation, but not upon an amount exceeding the sale price of such property," analyst Aida Montano wrote for the commission. "Dower interest also terminates upon the granting of an absolute divorce in favor of or against a surviving spouse by a court of competent jurisdiction within or without this state.

"In lieu of such dower interest which terminates under the above provisions, a surviving spouse is entitled to the distributive share provided by the statute on descent and distribution."

HB 407 also would modify the provision that, in addition to the rights of a surviving spouse under the Probate Law, a decedent's surviving spouse who died testate or intestate is entitled to any other rights prescribed in other Revised Code chapters.

"In practical application, dower's purpose is to protect the spouse that is not on title that the spouse owns real property," Seitz told committee members. "Today, electronic records and court-mandated disclosure in legal family law proceedings largely make this provision moot.

"Simply put, HB 407 abolishes the estate of dower in Ohio after the effective date of the legislation, joining 47 other states."

The bill had not been scheduled a second hearing at the time of publication.

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