An Outdated Law That Still Disrupts Estate Planning
Some laws seem so outdated they feel like trivia—such as the ban on tying a giraffe to a telephone pole or wearing a fake mustache in church. But not all outdated laws are harmless or forgotten. Dower rights, which date back to English common law, still actively affect estate plans in states like Arkansas, Kentucky, and Ohio. While most states have abolished dower rights, they remain enforceable in a few jurisdictions and can even arise in unexpected situations, especially when someone dies before their repeal.
Estate planning in these states becomes more complicated when dower rights apply. A surviving spouse may claim a share of the deceased spouse’s property—even if omitted from the will. Ignoring these laws can unintentionally derail a carefully crafted estate plan.
What Are Dower Rights?
Dower rights originally protected widows who lacked legal ownership of property. Traditionally, these laws granted a surviving wife a lifetime interest in one-third of her husband’s real estate. Curtesy rights, which applied to widowers, offered similar protection if the couple had children. While the names and details differ by state, the principle remains the same: surviving spouses retain a legal right to a portion of their partner’s real estate, even if excluded from the title or will.
Today, dower and curtesy rights survive only in a few states. Where they remain, these rights automatically grant a surviving spouse an interest in the deceased’s property. This interest, known as a life estate, allows the spouse to use or receive income from the property for life. However, they cannot sell the property or pass it to heirs. The interest ends when the surviving spouse dies.
Where Dower Rights Still Exist
Three states continue to enforce dower rights: Arkansas, Ohio, and Kentucky. In Arkansas, if the deceased had children, the surviving spouse receives a one-half life estate in the real property. If the deceased had no children, the spouse inherits one-half of the property outright. This right takes precedence over creditor claims.
Ohio grants the surviving spouse a life estate in one-third of the deceased spouse’s real estate owned during the marriage. This right continues until the surviving spouse dies, divorces, or signs a written release during a property transfer. The spouse may also collect one-third of the property’s income for life.
In Kentucky, the law gives the surviving spouse outright ownership of half of any property the deceased owned individually at death. Additionally, the spouse may receive a life estate in one-third of any real estate the deceased owned during the marriage but not at the time of death.
These laws override the deceased’s will or trust and complicate transfers of real estate, particularly in blended families or second marriages. Even if the deceased left property to children or other heirs, a surviving spouse’s dower interest remains protected by law.
How Dower Rights Impact Estate Planning
Dower rights restrict how a person may distribute their real estate. In states where dower applies, a surviving spouse automatically gains a claim to a portion of the property. As a result, the deceased cannot simply leave real estate to children or others without considering the spouse’s legal rights.
For example, consider someone in a second marriage who owns a home and wishes to leave it to children from a prior marriage. If that person dies in Kentucky, the surviving spouse may still claim a life estate in half the property. This life estate allows the spouse to live in or rent out that portion, delaying full ownership by the children until the spouse passes away. In some cases, this situation leads to conflict or delays in executing the estate plan.
These complications highlight why estate planning must address not only modern laws but also lingering statutes that create unintended consequences. In states where dower rights persist, property owners must plan carefully to avoid entanglements after death.
Can Someone Waive Dower Rights?
While difficult, waiving dower rights remains possible. Some states allow couples to sign a release or waiver. In Kentucky, for instance, infidelity and abandonment may terminate a spouse’s rights. Additionally, prenuptial or postnuptial agreements may include provisions that modify or eliminate these rights. Couples who agree to waive dower must follow strict legal procedures to create enforceable contracts.
However, not all spouses feel comfortable with these agreements, and courts scrutinize them closely. Couples should consult with an attorney to ensure these waivers meet state requirements and protect both parties fairly.
How Modern Laws Protect Surviving Spouses
Most states have moved beyond dower and curtesy in favor of more comprehensive protections for surviving spouses. One of the most common mechanisms is the elective share. This provision allows a surviving spouse to claim a percentage of the deceased spouse’s estate, even if the will leaves them nothing. The elective share typically ranges from one-third to one-half of the estate, depending on the state.
Unlike dower rights, which apply only to real estate, the elective share includes bank accounts, investments, and other property. The surviving spouse may either accept what the will provides or elect to take the statutory minimum instead.
California, though it lacks an elective share, still offers protections through community property laws, homestead rights, and spousal allowances. These laws prevent surviving spouses from becoming financially vulnerable, even if the estate plan does not include them explicitly.
Why You Shouldn’t Rely on Default Protections
While dower rights and elective shares offer important safety nets, they fail to account for the nuances of individual relationships and financial priorities. Relying solely on state law leaves too much to chance. Every couple has unique goals, and default rules often clash with the intent of the deceased.
Strong estate planning allows spouses to go beyond legal minimums. A trust can provide for a surviving spouse while preserving assets for children or other beneficiaries. Beneficiary designations on retirement accounts and life insurance offer another layer of protection. Joint ownership of property with survivorship rights can transfer assets outside of probate, avoiding court delays.
In marriages with children from previous relationships or significant financial imbalances, a prenuptial or postnuptial agreement can define expectations and minimize conflict later. These documents, when drafted properly, ensure both spouses feel secure and respected.
Work With an Attorney Who Knows the Landscape
Dower rights may sound like ancient history, but they still create real legal challenges in estate planning today. Knowing whether these rules apply—and how to address them—requires a thorough understanding of state law and property ownership.
At Skvarna Law Firm, we help families create estate plans that respect tradition while embracing modern realities. We focus on clarity, fairness, and long-term peace of mind. Whether you’re planning or updating an existing plan, we’ll walk you through every option.
Let us help you protect your loved ones and preserve your wishes. An outdated law should never dictate your legacy.
About Skvarna Law Firm in Glendora and Upland, California
Skvarna Law Firm operates offices in Glendora and Upland, California. We provide legal services. We cover San Bernardino, Los Angeles, Orange, and Riverside Counties. This includes several cities. Upland, Ontario, Rancho Cucamonga, Fontana, Colton, Rialto, Chino, Chino Hills, Glendora, Claremont, Pomona, La Verne, Montclair, San Dimas, Azusa, Covina, West Covina, Diamond Bar, Walnut, La Puente, Corona, Norco & Mira Loma. Visit SkvarnaLaw.com to learn more.
