The first element of a dower claim is a valid marriage. Secondly, a sole and beneficial seisin of property by the deceased spouse at any time during the marriage is required. Third, there should be living issue(s) during the marriage and finally, the death of a spouse leaving the surviving spouse to claim dower.
A spouse claiming dower should prove that there was a valid marriage between the parties and such marriage was in existence at the time of the spouse’s death. A marriage that is annulled or void ab initio is insufficient. A final decree in divorce shall extinguish the dower claim by agreement. If an agreement is not reached at divorce, then the dower continues, but shall not be applicable to the property acquired after the divorce.
The Uniform Marital Property Act allows courts to apply the provisions relating to validly married spouses in cases which involve invalidly married persons where the application of such provisions is required to prevent inequitable results. The Uniform Marriage and Divorce Act includes the putative spouse doctrine, which helps an innocent spouse of a voidable marriage in asserting the rights of a legal spouse in certain circumstances.
Sole and beneficial seisin of an estate of inheritance is a prerequisite to the existence of common-law dower or curtesy. Property transferred before a marriage or acquired after the dissolution of a marriage cannot be subject to a dower claim. Seisin is the legal possession of a freehold estate. Seisin is always in a person who holds a present possessory freehold estate. If the deceased spouse was a trustee or a co-tenant, then no dower lies since there was no sole or beneficial seisin. The estate which the deceased spouse is seised cannot be one that ends at the deceased spouse’s death. Term of years does not affect a landowner’s seisin.
Where the deceased spouse is not the surviving tenant, the latter’s right of survivorship prevails over a dower claim. The Probate Codes entitle the heirs of a decedent who dies intestate, to the distribution of the estate. In Cox v. Texas, 2009 U.S. Dist. LEXIS 111184 (S.D. Tex. Dec. 1, 2009), it was stated that the heirs include those persons including the surviving spouse and those persons who are entitled under the statutes of descent and distribution.
Dower and curtesy apply only to legal property rather than equitable estates. Dower applies to whether the spouse held property in fee simple absolute or fee tail. The surviving spouse is entitled to a life estate in all the decedent’s real property owned in fee simple. In re Martz, 293 B.R. 409 (Bankr. N.D. Ohio 2002), it was recognized that a spouse’s right to dower confers upon that spouse a cognizable interest in the real estate owned by other spouse.
The creation of a joint tenancy in land subject to a dower right creates a right in survivorship in the joint tenant that is generally above the inchoate dower rights of a spouse, so that the surviving spouse is not normally entitled to curtesy or dower in that property. If a spouse tries to transfer property from his sole ownership to a joint tenancy in order to defeat his wife’s dower rights, the property continues to be subject to dower, and there is no survivorship.
A partnership interest is not subject to common law dower because the interest is regarded as personalty rather than real property. Also, if the deceased spouse owned shares in a corporation or other legal entity whose sole assets were real property, there would be no dower, because the shares are personalty.