Ohio is one of the few states left in the United States that recognizes the dower rights of a spouse with a non-vested interest in real estate. Even when a spouse is not in title, failure to have that spouse release their dower interest by executing an instrument of conveyance, whether a Deed or Mortgage, will be construed as a cloud on title. Ohio’s dower statute provides that a spouse who has not relinquished their dower interest retains a one third life estate interest in the real property of which their deceased spouse owned at the time of death and is codified in Ohio Revised Code Section 2103.02.
Originating from common law principals in feudal England, dower was originally established as a means for offering protection to a widow who survived her husband by providing for her right to a one third life estate interest in the real estate owned by her husband so that she was not displaced at the time of his death. Curtesy is a similar common law principal that extends to what is equivalent to a male dower interest, however the curtesy terminology is no longer used in Ohio, so we refer to dower as applying to both males and females in Ohio.
Dower cannot be separately conveyed to a third party in the absence of a conveyance by the vested spouse, meaning that a spouse cannot sign one instrument that unequivocally relinquishes any and all dower interest that the spouse entitled to dower may have. The dower interest must be specifically released on each specific conveyance made by the vested spouse. Prenuptial agreements are also an ineffective way to eliminate dower rights in real property in Ohio. Aside from joining in the spouse’s conveyance by providing a proper dower release on recorded Deeds and Mortgages, dower can only be eliminated by the following:
Death of the spouse who otherwise would be entitled to the dower interest;
Finalized Divorce or Dissolution;
Legal Separation (which requires a formal court order decreeing that the spouses are legally separated under Ohio law and all dower has terminated).
Many legislative attempts have been made in the last few years to eliminate Ohio’s antiquated dower statute to no avail. Efforts to eliminate dower in Ohio gained substantial traction most recently in 2020 but ultimately stalled and died in the legislature. So until the legislature formally revokes Ohio Revised Code Section 2103.02, non-vested spouses will need to specifically release their dower interest in all conveyances made by the vested spouse.
Kimberly D. McNally
Guardian Title & Guaranty Agency, Inc.