Dower Rights: An Outdated Law Still Influencing Modern Estate Plans
From obscure statutes banning doughnut sales on Sundays to bizarre laws forbidding tying a giraffe to a telephone pole, American legal history is filled with quirky relics. Though rarely enforced, these remnants remain on the books in various states. For instance, in Alabama, it's illegal to wear a fake mustache in church if it causes laughter; in Massachusetts, dueling with water pistols is banned; and in Oklahoma, tripping a horse is a misdemeanor.
However, not all outdated laws are merely curiosities. Unlike these whimsical examples, dower rights—a centuries-old legal protection for surviving spouses, typically wives—are still actively enforced in Arkansas, Kentucky, and Ohio, and can significantly affect estate planning. In certain states where dower laws have been repealed, they may still apply if a spouse passed away before the repeal.
While dower rights can provide important protection for surviving spouses, they are no substitute for thoughtful estate planning. Couples are encouraged to move beyond the bare minimum legal standards and implement modern, comprehensive strategies to safeguard one another.
What Are Dower Rights?
Dower rights date back to English common law and were designed to support widows by granting them a one-third life interest in their husband’s estate at a time when women couldn't own property. Curtesy rights, a counterpart for widowers, allowed a husband to inherit his wife’s property—provided the couple had children.
Today, in the few states where they still exist, these rights automatically give a surviving spouse a legal interest in real estate, regardless of whether they were included in the title or estate plan.
How Dower Rights Work
Dower rights give the surviving spouse a life estate—the right to use and benefit from the property during their lifetime, though not to sell it outright. After their death, ownership typically transfers to heirs or beneficiaries named in the deceased spouse’s estate plan.
Dower rights generally override a will, meaning a surviving spouse may retain their life interest even if they’re excluded from the will or if the spouse died intestate (without a will). These rights end upon divorce, and in some states, can be waived through a written release.
State-Specific Dower Rights
Here’s how dower rights apply in the three states where they are still enforced:
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Arkansas:
If the deceased had children, the surviving spouse receives a half life estate in the real property. If there were no children, the spouse inherits half outright. This takes priority over creditors during probate. -
Ohio:
The surviving spouse gets a life estate in one-third of all real property the deceased owned during the marriage, including the right to receive one-third of any income or rent. This right ends upon death, divorce, or formal waiver. -
Kentucky:
If the deceased owned property solely in their name, the surviving spouse inherits half of it outright. They may also receive a life estate in one-third of any other real estate owned during the marriage but not at death.
Estate Planning Challenges Posed by Dower Rights
Dower rights can complicate an estate plan, especially when a spouse wishes to leave property to someone other than their surviving spouse—such as children from a previous marriage.
For example, in Kentucky, a person who owns a home in their name might intend to pass it to their children. However, their current spouse may still be entitled to a life estate in half of the property. This could result in the children inheriting the home with restricted control until the surviving spouse passes away or releases their interest.
Because these rights automatically vest, they can disrupt plans to sell, transfer, or divide property and may result in conflicts among heirs. In some cases, prenuptial or postnuptial agreements can help waive or limit these rights. Kentucky law also allows dower rights to be voided due to adultery and abandonment.
Modern Alternatives: Elective Share and More
Though dower and curtesy rights are mostly abolished, their purpose—to protect surviving spouses from disinheritance—persists in modern law through provisions like the elective share.
An elective share allows a surviving spouse to claim a state-defined portion (typically one-third to one-half) of their deceased spouse’s estate, regardless of the will’s terms. This is also known as a spousal share or forced share, and most states have some version of it—except California, which uses other protections such as community property laws, homestead exemptions, and spousal allowances.
These modern tools aim to prevent a surviving spouse from being left without financial support and offer more balanced, gender-neutral protections than dower and curtesy ever did.
Why Intentional Planning Matters
While dower rights and elective share laws offer essential safeguards, they shouldn't be relied on as a substitute for intentional planning. Every family situation is unique, and the default rules may not reflect your personal goals or provide adequate protection for your spouse.
Consider integrating modern planning tools such as:
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Joint ownership with rights of survivorship
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Beneficiary designations on retirement and investment accounts
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Revocable or irrevocable trusts to provide income or manage distributions
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Life insurance policies
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Prenuptial/postnuptial agreements to clarify financial expectations
A carefully crafted estate plan goes beyond basic legal protections to address your family’s specific needs. Working with an experienced estate planning attorney ensures your plan respects your wishes, honors state law, and supports your loved ones—especially your spouse.
Contact us today to explore how we can help you protect your family’s future and build an estate plan tailored to your unique situation.