An inchoate dower will not be terminated unless it is realized by a widow[i]. A widow’s right for dower is not derived as a descent from the husband nor does it takes its birth from the death of the husband[ii]. A widow gets her right for dower right from the date of her marriage.
Generally a widow can be deprived of her right to dower only by voluntary consent that is given by her own act or by any provision of a statute. Also, a widow can be divested of her right of dower only by an express language or irresistible implication from the terms of an instrument terminating the dower[iii].
A widow’s dower will not be terminated under the following circumstances:
- sale[iv]; or gift[v] of a property by the husband without releasing the wife’s right for dower;
- mortgage or lease executed by the husband without the wife’s consent[vi];
- contract executed by the husband without wife’s consent or knowledge[vii]; and
- transfer made without releasing the right for dower.
However, a husband who is the sole owner of a property can transfer his interest in the property without wife’s consent to anther person by a contract if the purchaser is willing to take the husband’s interest along with wife’s right for dower. Similarly an easement can be conveyed without defeating the wife’s right for dower[viii].
A widow’s right for dower will get extinguished under the following circumstances:
- when partition sales are conducted as a matter of public policy;
- when a real property is sold by a trustee under bankruptcy proceedings;
- on the death of a wife who has the right for dower;
- when a wife transfers the property along with her husband to their children as a vested interest;
- when a wife joins with her husband in a conveyance of land;
- when a wife puts her signature as a grantor in a transfer document for the transfer of a property belonging to the husband; and
- when a wife fails to state in a quitclaim deed that her dower rights are retained.
However a right for dower won’t be defeated if the transfer is made with an intention to defeat the claim of dower and if there is no agreement for relinquishing the right for dower. In such cases, fraud will be presumed on the part of the husband[ix].
[i] Carmack v. Carmack, 1936 Ohio Misc. LEXIS 877 (Ohio P. Ct. 1936)
[ii] Cummings v. Schreur, 239 Mich. 178 (Mich. 1927)
[iii] In re Estate of Hiley, 262 So. 2d 476 (Fla. Dist. Ct. App. 4th Dist. 1972)
[iv] First Nat’l Exchange Bank v. United States, 217 F. Supp. 604, 606 (W.D. Va. 1963))
[v] Newton v. Newton, 162 Mo. 173 (Mo. 1901)
[vi] Westergard v. Klepper, 229 N.W.2d 236 (Iowa 1975)
[vii] Holloway v. Gutman, 707 So. 2d 356 (Fla. Dist. Ct. App. 5th Dist. 1998)
[viii] Elton Schmidt & Sons Farm Co. v. Kneib, 2 Neb. App. 12 (Neb. Ct. App. 1993)
[ix] Warren v. Compton, 626 S.W.2d 12 (Tenn. Ct. App. 1981)