From laws against selling alcohol on Sundays to ordinances that prohibit tying a giraffe to a telephone pole, the annals of American jurisprudence are filled with archaic laws that, while still technically on the books, are rarely, if ever, enforced. Among these is the concept of dower rights, which are laws that protect a wife's interest in her husband's property.
In Alabama, wearing a fake mustache in church is illegal if it causes laughter. Massachusetts forbids dueling with water pistols. In Oklahoma, tripping a horse is a misdemeanor.
However, not all outdated laws are mere trivia or historical oddities. Unlike these whimsical holdovers from a bygone era, dower rights, a centuries-old protection for surviving spouses (usually the wife), are actively enforced in Arkansas, Kentucky, and Ohio and can impact estate planning in those states. Dower rights can also resurface in some states where they are no longer on the books if a spouse died before the law’s abolishment.
Although dower rights and other state laws can provide a surviving spouse with a safety net, they are not a substitute for intentional estate planning; spouses are well advised to go beyond minimum legal requirements to incorporate more modern and robust protections for each other.
Historically, dower rights, a legal concept dating back to English common law, gave widows the right to one-third of their husband’s estate for their lifetime, supporting them at a time when women could not own property.
Similar rights, known as curtesy rights, entitled a widower to his deceased wife’s property for the widower’s lifetime—but only if they had children together.
In the few states where they persist today, dower and curtesy rights grant a surviving spouse an automatic interest in real estate owned by the deceased spouse, whether or not the surviving spouse is omitted from legal documents.
Dower rights grant the surviving spouse an ownership interest known as a life estate in the deceased spouse’s real property.
A life estate means that the surviving spouse can use and enjoy the property during their lifetime but cannot sell it outright. Upon the surviving spouse’s death, ownership of that portion of the property typically passes to the next of kin or the deceased spouse’s named beneficiaries. Dower rights also terminate when spouses divorce; in some states, spouses may sign a release forfeiting their dower rights.
Dower rights supersede a last will and testament, meaning that the surviving spouse retains their dower interest even if they are left out of their spouse’s will or their spouse dies intestate (without a will). These rights apply to real estate regardless of whether the surviving spouse is named on the property’s title.
Dower and curtesy have mostly been abolished or replaced by more modern statutes, but they remain on the books in Arkansas, Ohio, and Kentucky.
Dower rights can complicate estate planning and must be considered in the three states where they apply. They may still apply in other states if the spouse died before the abolishment of dower rights laws.
In these instances, because the surviving spouse has a legal claim to a portion of the deceased spouse’s property, the deceased spouse cannot just leave the entire property to someone else in their estate plan.
As a result, dower rights can complicate plans to sell or transfer property. They may conflict with the deceased’s wishes—especially if they wanted their children or others to inherit outright.
If someone wants to leave their entire property to their children from a previous marriage, dower rights could give their current spouse an ownership stake or life interest in some of that property, leading to conflicts between the estate plan’s beneficiaries and the surviving spouse.
For example, a person in a second marriage who owns a home solely in their name may wish to leave the home to children from their first marriage. However, if they reside in Kentucky, their current spouse may have a life estate in one-half of the home. This means the surviving spouse can live in or rent it out (and collect rent from one-half of the property’s value) for the rest of their life. The children from the first marriage still inherit the house as the will directs, but their ownership is subject to the current spouse’s one-half-life estate. They do not get complete control until the current spouse dies.
A surviving spouse’s dower rights in Arkansas, Ohio, and Kentucky are difficult—but not impossible—to terminate. Kentucky considers an act of adultery and subsequent abandonment grounds for canceling a spouse’s dower rights. In some cases, prenuptial or postnuptial agreements may also be used to waive or modify dower rights.
As societal norms have shifted and legal frameworks have evolved to reflect an equal view of spouses in a marriage, dower, and curtesy rights have largely been consigned to the dustbin of history.
In 2017, Michigan was the last state to repeal dower rights following the US Supreme Court’s 2015 decision in Obergefell v. Hodges, which mandates states to recognize same-sex marriages. By eliminating dower, Michigan modernized its inheritance and marital property laws to treat spouses equally, regardless of gender.
However, the spirit of dower and curtesy rights as the safety nets of their time, protecting surviving spouses from possible destitution and dependency, live on in a modern legal concept known as the elective share.
An elective share is a legal provision that permits a surviving spouse to claim a minimum share of accounts and property from their deceased spouse’s estate, regardless of their spouse’s estate plan.
Like dower rights, the elective share intends to prevent a survivor from being disinherited and left destitute, giving them guaranteed financial security.
Also known as a spousal share or forced share in some jurisdictions, the specifics of the elective share vary by state, but generally, it gives the surviving spouse the option (hence the term elective) to either accept what is left to them in their deceased spouse’s estate plan or instead take a legally defined percentage of the deceased spouse’s assets—usually between one-third and one-half, depending on the state.
Most states have an elective share law. California is a notable exception, but other states have community property laws, homestead exemptions, and spousal and family allowances—that similarly protect surviving spouses.
While dower rights and more modern protections such as elective share and community property laws offer a fallback for surviving spouses, they should not be exclusively relied on. Every marriage and every family has unique dynamics. Relying on default provisions and automatic protections may not adequately address a surviving spouse’s specific needs or your unique goals and objectives.
Married couples can incorporate additional protections for their spouses into their estate plans, such as life insurance, beneficiary designations on retirement accounts, and a trust that provides income for a surviving spouse while preserving property for other loved ones. Owning property jointly with rights of survivorship can also provide for a surviving spouse by passing property to them directly outside of probate. In some cases, a prenuptial or postnuptial agreement can help clarify financial rights and responsibilities, especially in second marriages or when one spouse has significantly more assets than the other.
A strong estate plan goes beyond the minimum legal requirements a state may offer and is tailored to a family’s unique situation and changing circumstances. Spouses should work with an estate planning attorney to create a custom plan that respects state law, each other, and their personal and shared concerns. Book a FREE Discovery Call to discuss how we can help you provide for your spouse and address any additional unique concerns that are your priority.
[1] Ark. Code Ann. § 28-11-305 (2024), https://law.justia.com/codes/arkansas/title-28/subtitle-2/chapter-11/subchapter-3/section-28-11-305.
[2] Ark. Code Ann. § 28-11-307 (2024), https://law.justia.com/codes/arkansas/title-28/subtitle-2/chapter-11/subchapter-3/section-28-11-307.
[3] Ohio Rev. Code § 2103.02 (2025), https://codes.ohio.gov/ohio-revised-code/section-2103.02.
[4] Id.
[5] Ky. Rev. Stat. § 392.020 (2024), https://law.justia.com/codes/kentucky/chapter-392/section-392-020.
[6] Id.
(By Appointment Only)
14425 Falcon Head Blvd
Bldg E-100
Austin, TX 78738
