Dower is an idea older than the Michigan Constitution. By awarding special property rights to women after their husbands die, this law is inherently sexist. Now the Michigan Legislature has done away with dower, but it left in place the kind of gendered language marriage equality advocates were hoping would become a thing of the past.
When the Michigan legislature passed three bills eliminating dower in the final days of 2016, they took a step toward eliminating sexism from the state's family and probate laws. But as is often the case, the legislative dance is two steps forward, one step back.
What is Dower?
Dower is an old idea. It has been a part of Michigan law since 1787. The concept has survived multiple amendments to the law, and even the 1961 Michigan constitutional convention. Even so, many life-long residents don't even know what it is.
Dower rights give widows the right to claim a 1/3 interest in any real property their husbands owned at any time during the marriage. That means a wife owned 1/3 of any land, property, or buildings a married man purchased. When a man died, a woman could choose what she would inherit:
- Surviving spouse awards of $150,000 plus 1/2 of his estate,
- Whatever was left to her in a will, or
- 1/3 of all his real estate interests.
This dower property was held as a "life estate," meaning that when the widow died, the husband's heirs would get the property, rather than hers.
Dower technically applied in divorce actions as well. However, because each spouse is entitled to an equitable distribution of assets obtained by either party during a marriage, a wife is almost always entitled to more than that 1/3 real property interest during a divorce.
New Michigan Laws Repeal Dower
The U.S. Supreme Court ruled in favor of marriage equality in Obergefell v Hodges in 2015. In its decision, the Court held that the states could not discriminate against a person's right to marry based on sex or gender. Many felt that Obergefell stood for the end of all gender-specific language in family and probate law.
In late December 2016, the Michigan legislature appeared to take a similar stance. It repealed dower through 2016 PA 378, 2016 PA 489, and 2016 PA 490. Unless a husband died before the effective date of the new laws, Michigan widows will no longer be able to claim that 1/3 property interest instead of choosing surviving spouse awards.
The amendments won't have a huge practical impact. Most widows and divorcing wives have found dower to be the weaker of their options. But it did reduce the number of states engaging in sexist property distribution through dower down to six.
Michigan Misses Chance to Remove Gendered Language
If the Michigan legislature truly agreed with commentators that say Obergefell negated gendered language in family court, then the legislators missed an opportunity to remove gendered language and clean up one of their statutes. In amending MCL 552.101 in 2016 PA 387, lawmakers simply removed the language "in lieu of dower." This leaves two identical paragraphs: one for wives and one for husbands.
But after Obergefell, laws that treat men and women differently in family law are suspect. So why wouldn't the legislature take this opportunity to turn two paragraphs into one? The law could have said "Each judgment of divorce or judgment of separate maintenance shall determine all rights of each spouse". Instead, the law maintains separate paragraphs for husbands and wives, even while courts are handling divorce cases with two husbands and two wives.
Repealing dower is a step in the right direction. It shows the Michigan legislature understands that modern women have the power to own property and build estates as large and complex as their male counterparts. But by retaining the gendered language in the statute governing property distribution in a divorce action, the lawmakers showed that they still don't understand what Obergefell was really all about.
Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. She places special emphasis on LGBT family issues from planning to divorce. If you are facing a divorce or trying to plan for your family's future, contact Schmidt & Long today to schedule a free consultation.