Dower and Divorce – We thought we were done!
In 2016 Michigan repealed the long-standing “dower rights” on the books, being one of the last states to maintain such a statute and the repeal was effective April 6, 2017. This was likely a response to the US Supreme Court determining that bans on same-gender marriages are not constitutional. Since “dower rights” were conferred, by statute, only to a Wife (woman) this made marriages of same-gender couples confusing, as a marriage may have two (2) women, or none… how would “dower rights” apply in those marriages? The simple response was to remove “dower rights” from our books.
If you recall, Dower, is a wife’s interest in her husband’s real property upon his death. It is a centuries old legal concept and it provides a widow with a portion of her deceased husband’s real property, that the widow is entitled to use during her lifetime.
As a matter of practice, when a married couple divorced, we, as legal counsel, had to address the Wife’s dower rights. Normally, in this modern age, we would simply state that the property settlement agreement the parties reached in a divorce was in lieu of / satisfaction of, or supersedes, dower rights, and therefore the now ex-wife would not have a right to her ex-husband’s property (owned or acquired during the marriage) upon his death.
As a Family Law attorney, I have had much debate since the Dower statute was repealed in how to address it in a divorce action. Some attorneys and judges said to put it in the Judgement, some said to leave it out.
In a recently decided case, albeit unpublished, the Court of Appeals has shed some light on this debate. In Deutsche Bank National Trust Co. v. Slan, 340005 the Court of Appeals held:
[W]e recognize that statutes and statutory amendments are presumed to operate prospectively, unless the Legislature clearly manifests an intent to the contrary. And there is no clear intent of the Legislature in MCL 558.30 that the abolishment of dower was to apply retroactively, and contrary to this presumption.
(citing Davis v State Employees' Retirement Bd, 272 Mich.App. 151, 155-156; 725 N.W.2d 56 (2006)).
In reading this case, and Court of Appeals’ opinion, it is this author’s understanding that so long as the marriage was in existence during the time Dower was a statute on the books, a Judgement of Divorce must still address Dower. This may cause us Family Law attorneys to be on our toes for a few more years yet, because as time goes forward, we will need to make a distinction between couples that married before or after the repeal of Dower in Michigan as we draft our Judgments.
About the author: Lori B. Schmeltzer is the owner of Schmeltzer Law PLLC, Traverse City's Divorce Lawyer (www.tcdivorcelawyer.com). Lori practices primarily in family law, and has a background in business management and marketing, having earned her Bachelor's in Business Administration from Walsh College in Troy before attending law school. She has served on the GTLA board for two years, is an active member and committee chair with the Traverse Area Chamber of Commerce's FUSE (formerly Young Professionals) organization, and is a proud Rotarian.