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Can a will supercede "dowry rights"?

Defiance, OH |

An individual property owner marries without prenup. She wants her property to go to her children. She finds out after the fact that, even though her property remains hers during life and goes with her in divorce, he has "dowry rights" to property if she dies during marriage. She wants her property to go to her children. He refuses to sign off his rights to the property. If she has a will drawn up specifying he did not contribute to property (paid off well before he married her) and she wants her property to go to her children, will that be sufficient to direct that property to her children? Or, is divorce the only way she can sever his claim?

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Attorney answers 3

Posted

You generally cannot defeat dower rights in a Will. In fact, most states have laws protecting the surviving spouse so that, if you try to disinherit them by Will, the spouse can elect to take against the Will. Granted, they will take less than they would, if there were no Will, but they would still be entitled to a share of the estate.

I do not see any way of your canceling your husband's rights, without his consent. There are a number of ways that you can protect your kids in such a way that he may not object, however.

Dower rights normally refer only to the rights of a wife in her husband's real property. Curtesy laws normally are the husband's equivalent. Ohio law did away with curtesy rights in the 1950s and replaced them with dower rights for the husband, as well as the wife.

Getting to your situation, you are going to need to meet with an estate planning attorney and share your situation and your objectives, to make sure that you get the best advice and set things up properly. A couple ideas you might want to consider, however:

1) You set up a deed reserving a life estate in your husband, in the event of your death. If you survive him, or upon his death, the remainder interest passes to the children.

2) You do basically the same thing, but set this up by way of a trust. The advantage of the trust is that you can provide for a number of different contingencies, and you can also deal directly with all of your other assets, as well. Without a trust, you will need to make sure that you designate beneficiaries on all of your assets. I would also designate contingent (or secondary) beneficiaries on everything, just to make doubly certain you avoid probate.

You will also want a General Durable Power of Attorney for financial and health care. This is especially important because this allows you to name the person who would make decisions for you and handle your affairs, in the event that you become incapacitated. It is not at all clear whether you would want your husband to act in that capacity, if the situation were to arise.

Your husband should make sure that all of his estate planning is in order, as well. Perhaps if handled in this way, it will not strike him as being as adversarial. You will, in effect, be protecting both him, AND your children.

James Frederick

I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.

Asker

Posted

This is my sister's marriage. She is low income, and her own home is only worth about $20,000 on today's market. However, her name is on my mother's home, along with my name and my mother's name. I am more concerned with spouse demanding, upon her death, to receive a share of mother's home. They have not been married yet 2 years. My mother's house has been paid off for about 15 years, so he has not vested interest other than the dowry rights (same for sis's house). My sister is 40 years old, and has just been told she is going to be tested for thyroid cancer. The only other tangible property she has, other than her house/contents and name on mom's house, is a car not yet paid off. Thank you for your advice.

James P. Frederick

James P. Frederick

Posted

It may depend on how title it held. Here in Michigan, there are no dower rights in a property held as joint tenants with rights of survivorship. If that is how the title is held in your case, you may want to confirm with an Ohio attorney that the result would be the same, there. That could totally solve your issue.

Posted

The individual needs to speak with an experienced estate planning attorney to construct an appropriate estate plan to meet her needs and goals. The short answer to your question is no. You can't deprive a spouse in Ohio of their statutory right to inherit through probate. If you make a will that omits your spouse, the spouse can elect to take against the will, which means that he will be entitled to receive the following property to the extent of probate assets:
1/3 of the estate, family allowance, right to reside in the marital residence, and two automobiles up to $40,000 in value. However, these rights apply only to assets that pass through a decedent's probate estate. Property owned by a decedent's living trust is not subject to this division. However, in order to transfer real estate into a trust, the spouse must sign the deed to release his dower rights. Sounds like she is in a difficult situation and, short of his cooperation or the parties' divorce, there aren't a whole lot of options. Best wishes to you all.

This response contemplates only the laws of Ohio and is not intended to apply to other jurisdictions. None of the information in this response should be used or relied upon as legal advice or legal opinion about specific matters, facts, situations or issues. Viewing it does not establish an attorney-client relationship between you and Sherrille D. Akin, the law firm of Isaac, Brant, Ledman & Teetor LLP, or any of its individual attorneys

Asker

Posted

This is my sister's marriage. She is low income, and her own home is only worth about $20,000 on today's market. However, her name is on my mother's home, along with my name and my mother's name. I am more concerned with spouse demanding, upon her death, to receive a share of mother's home. They have not been married yet 2 years. My mother's house has been paid off for about 15 years, so he has not vested interest other than the dowry rights (same for sis's house). My sister is 40 years old, and has just been told she is going to be tested for thyroid cancer. The only other tangible property she has, other than her house/contents and name on mom's house, is a car not yet paid off. Thank you for your advice.

Posted

There are no shortcuts here. You can get "schooled up" on the issues through resources such as AVVO, but the remarried property owner is going to need an experienced estate planning lawyer, preferably a Certified Specialist in Estate Planning, Trusts and Probate Law to do the best estate plan possible.

It may also involve coordination with a Family Law attorney, because spouses acquire additional rights to one another's property each year they are married. If this is a short marriage and he is refusing to cooperate, divorce is an option: He won't get any of her property and after the divorce she can do with it what she wishes.

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