Re: Still no cause for Dower rights - Posted by JT-IN
Posted by JT-IN on June 29, 2003 at 05:52:42:
JT:
I did a bit of reading in my law book on the whole subject of dower rights. After the sneezing subsided from all the dust, I realized there isn’t much on the subject. Granted, my text is a general one and not one specific to RE law.
In any event, it seems that the subject of Dower Rights arose originally out of common law, or that law that was created by judges throught precendent, not law that was passed by the legislatures. I am not sure how much in the way of dower rights has since been codified.
My understanding of this (limited) is that typically precendent is set when a judge is in a position to interpret a vague law by trying to determine what the original drafters of the code would have intended under a given set or circumstances OR when a judge is faced with a question of “equity” or fairness. My bet, though not backed up by case reference, is that Dower rights arose out of the latter, or an attempt to be fair. Maybe they were looking to keep a widow from being thrown out on the street at her husband’s death despite how he might have wanted to dispose of the property in his will.
I am also betting that Dower rights might be a very old concept that was “enacted” by judges to protect widows (females) at her husbands death because women might not have had any standing to say “Husband, why is my name not on that deed?” or enforce her spousal rights to property in a court of law while her husband was alive. Remember, time was, wives were more akin to property than an equal party to a marriage contract (and Husbands were sort of “expected” to run around with the secretary). I come up with this because it seems that even now, Dower Rights are a “life estate.” My knowledge (again limited) of life estates is that they are only good while the beneficiary of this estate is alive. So, if you sold me a property in Ohio that only had your name on the deed without getting your wife’s blessing, upon your death she could lay claim to “use” of that property while she is alive. At her death, presumably, it would then pass to me according to your intention, regardless of what she wanted to happen to the property.
Lastly, before anyone thinks I have been a lawyer in hiding all this time, it seems most states have limited Dower rights to at least some degree in the legislature. Most frequently this has taken the form of providing Dower Rights only in property that the was owned at death. Property that you bought and sold in life is not affected. Again, this reinforces my guess that Dower Rights were meant to insure that the widow(er) is not tossed out of their house when their spouse dies.
By the way, I also agree that the govenment tries to provide me protections that I should be looking out for myself, often with the opposite affect.
Best Regards,
Tim
- Posted by Nate(DC)