Alternatives To Dower

Dower is the portion of a deceased husband’s real property that a widow is legally entitled to use during her lifetime.  Under some jurisdictions, dower is defined as the life interest which a wife acquires upon the death of her husband totalling to one third of real property of which he seized or possessed at any time during their marriage[i].

According to the common law, dower is the legal right or interest that a wife acquires in the estate of her husband.  The wife is entitled to use a portion of the property of the husband after his death.  Dower is also referred to as the statutory rights of widows in the real property of their husbands.

However, a dower right is subject to every lien or encumbrance at law or in equity existing before it attaches[ii].  If a real property is ordered to be sold by any court in which the surviving widow is entitled as dower, then upon the petition from the widow, the court will order the present value of her dower right or interest to be paid to her in lieu of dower.

The court can also set aside for the life of the widow one-third of the proceeds of such a sale or taking and shall appoint a trustee to manage and invest the same.  The annual income thus obtained will be paid to the party entitled to dower[iii].

It is to be noted that if there is no direct expression of intention on the part of a testator in his will that the testamentary provisions for the benefit of the surviving widow will be in lieu of dower, the widow will be entitled to dower unless it is clear from the language of the will that it will be inconsistent and incompatible with the general scheme in the will[iv].

If a court finds that land cannot be divided to effectuate dower rights, it can order the property rented and the rental divided, or order the property to be sold and the proceeds divided[v].  However, if a will is made for a widow in lieu of her dower and if she does not accept the same, then so must be indicated in writing to the court within the specified period[vi].  The proceeds of a judicial sale of the land ordered for the purpose of awarding may also be available for a payment in lieu of dower.

If the testator did not intend the provisions in the will for his widow in addition to her dower but to be in lieu of it and if his intention is discovered in other parts of the will, then it must be defeated by the allotment of dower to the widow.  The widow must renounce either her dower or the benefit under the will.  However, if the two provisions go together, then it can be presumed that the testator intended the bequest to his wife to be additional to the dower[vii].  In such circumstances, the widow is entitled to take both.

A surviving spouse who dies without making an election not to take under the will is presumed to have consented to its terms and such a right is regarded as a personal privilege.  This right will not pass to the heirs of the surviving spouse[viii].  Therefore, the right to elect will expire by the death of the surviving spouse.  If it is exercised, the personal and absolute nature of the widow’s right to renounce the provisions of the will prevents contest of this decision by devisees, legatees, heirs, or creditors[ix].

The purpose of the dower statute is to insure that a surviving spouse will not be left disinherited and destitute.  However, the statute is not meant to destroy the ability of the testator to give his property as he desires.  If the widow is not satisfied with the will provisions, she can elect to seek the statutory remedy but she cannot have both[x].  However, if the surviving spouse probates the will and fails to renounce it, s/he waives the right to receive dower and takes only under the will.  On the other hand, a widow who elects to receive dower will have no claim to any benefits provided under the will[xi].

[i] Dickson v. Industrial Nat’l Bank, 115 R.I. 458 (R.I. 1975)

[ii] Sheffield v. Cooke, 39 R.I. 217 (R.I. 1916)

[iii] Panteleakis v. Aris Realty Co., 1988 R.I. Super. LEXIS 128 (R.I. Super. Ct. 1988)

[iv] In re Estate of Watkins, 31 Misc. 2d 1016 (N.Y. Sur. Ct. 1961)

[v] Webber v. Webber, 331 Ark. 395 (Ark. 1998)

[vi] Dickson v. Industrial Nat’l Bank, 115 R.I. 458 (R.I. 1975)

[vii] Herbert v. Wren, 11 U.S. 370 (U.S. 1813)

[viii] Estate of Liden v. Foster, 103 Colo. 58 (Colo. 1938)

[ix] In re Estate of Messenger, 208 Kan. 763 (Kan. 1972)

[x] Hannah v. Hannah, 824 S.W.2d 866 (Ky. 1992)

[xi] Davis v. Mather, 309 Ill. 284 (Ill. 1923)


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