At the beginning of this year, the Michigan legislature and Governor Snyder finalized the enactment of Senate Bill 558 and 560 - legislation that effectively abolishes dower rights in the state of Michigan. If you are not a real estate professional in Michigan, then you probably have no idea what a dower right is or why slews of real estate attorneys, brokers, title company representatives and equality activists all breathed a sigh of relief when they heard dower rights are no more.
A little background on dower rights: Prior to the enactment of Senate Bills 558 and 560, a married woman in Michigan had certain rights in real property owned by her husband in his individual capacity (meaning, only the husband was listed on the deed and not the wife). These rights were referred to as dower rights. These rights amounted to a contingent estate that vested in the wife upon the husband’s death. However, in addition to the foregoing, dower also required that a wife consent to the transfer of any property owned by her husband during his life in order for a husband to pass clean title to the property to a subsequent purchaser.
A primary motivation for repealing this law appears to have been the United States Supreme Court decision in Obergefell v. Hodges. Under the former statute, dower rights were only available to wives, not husbands. The opinion among leaders in the Michigan real estate community was that it was only a matter of time before the constitutionality of the law was challenged in light of the marriage equality decision in Obergefell. Thus, Michigan legislators decided to repeal the law in order to avoid inevitable constitutional challenges.
So why is repealing this law music to the ears of Michigan real estate professionals (particularly real estate attorneys)? Because dower rights created problems in the chain of title for real property when property owned by a married man was transferred without the consent of his wife. When this occurred (and it did more often than people may think), subsequent purchasers of the property did not have clean title to the property. Thus, theoretically, a wife that did not provide consent could come back at a later time and claim an interest in the property based on her dower rights that she did not relinquish. Additionally and more commonly, if a wife failed to provide consent and a title company discovered this down the line, title companies could refuse to provide title insurance on such properties until the cloud was cleared. This often resulted in a major headache for all parties involved.
Take, for example, Husband that owns a piece of property. Husband and Wife collectively decide to sell the property to Neighbor and move out of state. In order to save on transaction fees, real estate-savvy Husband obtains online a quit claim deed, executes the deed conveying the property to Neighbor, and records it with the register of deeds (all the while not realizing that Wife should have signed the deed also in order to evidence her consent to the transfer of the property to Neighbor). Several years later, Neighbor goes to sell the property and when the parties attempt to get a title insurance policy, the title company refuses to issue the policy because Wife did not consent to the transfer to Neighbor.
Unfortunately, in Michigan, the above example didn’t just exist on the pages of a bar exam - it occurred far too often in real estate transactions. While remedying this situation was possible, it created headaches for all the parties involved; however, now - with the recent repeal of dower rights in Michigan - real estate professionals and real estate-savvy Husbands no longer need to worry about respecting the archaic (and likely unconstitutional) dower rights anymore.