What Do Provisions in Lieu of Dower Mean in a Divorce?

by Beverly Bird

The concept of dower dates back to days when wives rarely had any property of their own and marriages more commonly ended because of the death of one spouse rather than by divorce. When a woman’s husband died, she and her children might be left impoverished and homeless if he made no provisions for her in his will. States enacted dower laws to prevent this. They're specific to wives and state that marriage legally entitles a woman to a portion of her husband’s estate when he dies. Most states have abolished such laws, replacing them with more current legislation. Others have simply revised and updated their dower provisions to keep pace with the times.

Dower in Probate Law

Traditionally, dower related only to real property. It did not transfer title of a husband’s real estate to his spouse at his death. It only gave her the right to continue living in the property until her own death. This is a “life estate.” States that still carry dower laws have expanded the concept to include all property, both real and personal. Full transfer of ownership has largely replaced life estates. States that currently recognize elective or statutory share laws follow the same premise to protect a surviving spouse. They allow the spouse to reject or renounce the terms of her husband's will and claim up to half of his estate instead. The exact portion varies by individual state law. Unlike dower laws, elective shares protect both husbands and wives.

Effect of Divorce

A condition of dower is that a valid marriage must exist; otherwise, a wife cannot make a dower claim. Therefore, divorce automatically terminates such rights. In states that have upgraded their laws to eliminate dower and incorporate elective share provisions instead, divorce also ends the right to claim an elective share. Some more progressive states, such as New Jersey, terminate elective share rights as of the date of separation.

Substitution of Rights

Courts distribute marital property between spouses at the time of divorce. Alternatively, couples might end their marriage by negotiating a settlement agreement and dividing their property according to their own terms. In either case, wives take their share of marital property at the time of divorce. It replaces and substitutes for the dower or elective share of marital property she would have received had they remained married. Property distribution in a divorce is a provision in lieu of dower rights in states that still recognize dower.

Decrees and Other Waivers

Some states, such as Michigan, require that decrees specifically contain a provision in lieu of dower, stating that a wife accepts her share of marital property at the time of divorce and it represents satisfaction of a later dower claim. In states that still include dower language in their legislative codes, dower rights can continue past divorce unless decrees include this language. A wife can also waive her dower rights in a prenuptial or postnuptial agreement. In most states, legal separations do not terminate dower rights. However, a wife would not be entitled to any share of property her husband acquired after their divorce.