When you work with an estate planning attorney to create your will, one of the things that a lawyer will explain to you is that you can’t really disinherit your spouse, even if you want to. No matter what you specify in your will, your spouse has certain rights to claim an elective share of your assets. There are some ways to get around the rules giving your spouse an elective share, but the process of doing so can be very complicated and a simple will isn’t going to be enough.
Up until recently, one of the options a surviving widow could choose as an elective share was to exercise her dower rights.
As of April 1, 2017, however, dower rights are being abolished. Dower rights have been recognized for many decades under common law, and were included in Article X of the Michigan Constitution of 1963.
The change is a big one, and it is important for husbands and wives to understand the implications. Biddinger & Estelle, PC can explain the impact of dower rights being abolished and can help families to adjust to the change.
What are Dower Rights?
Dower rights give a wife the right to elect, upon the death of her husband, to claim a 1/3 interest in any real estate that was acquired during marriage but that was titled only in the name of her late husband. When the wife claims her interest, she claims the interest for her life possession and use
What About Protections for Men?
Dower rights only protect women. There used to be a comparable right for men, called curtesy, but when the Michigan Constitution was enacted in 1963, curtesy ended. Dower was kept, though and, up until now, Michigan was the only state in the United States that provides dower rights only to women with no comparable right for men.
When Were Dower Rights Abolished?
Public Act 489 was passed by the Michigan legislature in 2016 to abolish dower rights. On January 5, 2017, the governor of Michigan officially signed the Act law. The new law abolishing dower rights goes into effect on April 6, 2017.
What is the Impact of this Change?
Because dower rights have been abolished, a wife no longer gets to claim this 1/3 interest in real estate that is in her husband’s name.
Because wives previously had dower rights, Michigan law required wives to sign deeds, mortgages, or other documents transferring interests in real property. This meant that the husband’s property could not be transferred to anyone without the wife’s signature. If the wife signed away her dower rights, only then would her rights be released so the transferee could obtain good title to the property.
With the abolition of dower rights, a wife no longer has to sign these documents for a husband’s interest in real property to be transferable.
This does not mean that a wife has no rights to make any claims on property after her husband passes away. Both husbands and wives can still take their elective share if their spouse’s will disinherits them or does not properly provide for them.
Michigan Code Section 700.2202 explains the rules for a surviving spouse. The spouse can decide to abide by the terms of the will or can: “take 1/2 of the sum or share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.”
How Can Wives (and Husbands) Protect Their Rights?
The best way for husbands and wives to protect their rights is for the couple to make an estate plan together and to provide for each other. There are substantial benefits to leaving property to your spouse, not only to ensure that your husband or wife has money and a place to live after you are gone, but also to avoid estate taxes on larger estates since you don’t pay tax on assets transferred to a spouse.
Biddinger & Estelle, PC can assist you in making an estate plan that allows you to protect your husband or wife after you are gone. If you would prefer to leave assets to your children or other loved ones, but want to ensure that your spouse can retain the use of the property during the rest of his or her life, we can help you to effectively use legal tools to do that too.
Finally, if you are a wife (or a husband) who was disinherited, we can help you to determine how to claim an elective share of an estate. Contact us online or call us today at (989) 872-5601 to talk with a Michigan estate planing lawyer to find out more.