Some old laws just make us laugh. Others still affect your estate plan in real ways.

In Alabama, you can't wear a fake mustache in church if it causes laughter. Massachusetts bans water pistol duels. Oklahoma says tripping a horse is a misdemeanor.

Most of these laws are outdated jokes. But not all of them. Dower rights, an old legal rule, still exist in some states. And they can seriously impact your estate plan.

What Are Dower Rights?

Dower rights date back to English common law. They gave widows the right to one-third of their husband's estate. This right helped women survive when they couldn't own property. Men had similar rights, called curtesy. But curtesy only applied if the couple had children.

Today, a few states still enforce these rules. Dower or curtesy rights give a surviving spouse an automatic claim to real estate. The surviving spouse gets this claim-even if the will excludes them.

How Dower Rights Work

Dower rights give the surviving spouse a life estate in real property. This means they can use it but not sell it. When that spouse dies, the property passes to someone else. It usually goes to the deceased spouse's heirs or named beneficiaries.

If a couple divorces, dower rights end. Some states allow spouses to sign a waiver that gives up the right.

Dower rights override a will. So even if a spouse isn't in the will, they still get their dower interest. These rights apply even if the spouse isn't on the deed.

States That Still Enforce Dower Rights

Only three states still enforce dower rights today: Arkansas, Ohio, and Kentucky.

Arkansas

In Arkansas, what the surviving spouse gets depends on whether the deceased had children.

• If there are children: The spouse gets a one-half life estate in real property.
• If there are no children: The spouse gets one-half of the property outright.

This right takes priority over creditor claims in probate.

Ohio

In Ohio, the surviving spouse gets a life estate in one-third of the deceased's real estate. This applies to any property owned during the marriage. The right includes one-third of rents or profits. It ends only if the spouse dies, divorces, or signs a release when a property transfers.

Kentucky

In Kentucky, the rules are a bit more complex.

• If the deceased owned property solely in their name, the spouse gets half of it outright.
• The spouse also gets a life estate in one-third of any property the deceased owned during the marriage, even if they didn't own it at death.

How Dower Rights Affect Estate Planning

Dower rights can create serious complications in estate planning. They can override a will. They can also limit how property passes to children or other heirs.

Let's say someone wants to leave their house to children from a first marriage. In a dower state, the current spouse might still get a piece. That could be a half interest. Or it could be the right to live in or rent out the property for life.

These scenarios often cause tension between a surviving spouse and the children.

Example: Second Marriage and Dower Complications

Imagine this: A man in Kentucky owns a home. He's in a second marriage. He wants to leave the home to children from his first marriage. His will says so. But Kentucky law steps in.

His current wife gets a one-half life estate. She can live there or rent it for life. The children get what's left after she dies. This outcome may surprise everyone involved.

Can You Get Rid of Dower Rights?

It's hard, but not impossible, to remove dower rights. Some states recognize prenuptial or postnuptial agreements that waive dower. In Kentucky, adultery and abandonment may cancel dower rights. However, these laws are strict. Courts don't take away dower lightly.

Why Dower Rights Still Exist

Most states have repealed dower rights. Michigan was the last, in 2017.

The U.S. Supreme Court's decision in Obergefell v. Hodges helped push change. That 2015 case recognized same-sex marriage. States had to update old inheritance rules to avoid gender bias. Dower rights seemed outdated. So Michigan got rid of them.

Still, three states hold on to these laws. And they continue to impact real estate and estate plans there. In rare cases, old dower laws may apply in other states. If a spouse died before a repeal, their estate might still involve dower.

Modern Alternatives to Dower Rights

Dower rights are rare today. But the idea behind them remains. They were meant to protect a surviving spouse from poverty. Modern laws now fill that role.

Elective Share

Most states offer something called an elective share. This allows a surviving spouse to claim part of the estate-no matter what the will says. Each state sets its own rules. Usually, the elective share ranges from one-third to one-half of the estate. The spouse chooses whether to take what the will offers or the elective share. That's why it's called “elective.” This rule prevents someone from leaving their spouse with nothing.

Some states call it a “spousal share” or “forced share.” But the idea is the same.

Other Legal Protections

Even without dower rights, surviving spouses have protection. Some examples include:

• Community property laws in states like California
• Homestead laws that protect the family home
• Spousal allowances that cover short-term living expenses
• Family allowances for children or other dependents

These rules work differently in each state. But they all try to prevent disinheritance.

Protect Your Spouse with a Thoughtful Estate Plan

You shouldn't rely on dower rights or other default laws alone. Every marriage is unique. Every estate plan should be too. Some couples own separate property. Some have children from other marriages. Some just want control over who gets what.

Here's how to protect your spouse-and your wishes:

Use Joint Ownership

Property owned jointly with rights of survivorship passes directly to the other spouse. It avoids probate and can't be claimed by other heirs.

Name Beneficiaries

Use retirement accounts and insurance policies to name your spouse as a beneficiary. These assets pass outside probate and provide immediate support.

Set Up a Trust

A trust can give your spouse income for life. You can also preserve the property for your children or others. Trusts add flexibility and control.

Sign a Prenup or Postnup

If you want to clarify property rights, a marital agreement can help. These are especially useful in second marriages.

Talk to an Estate Planning Attorney

A good plan respects your spouse and your goals. It works with state law-not against it. An estate planning attorney can help you tailor a plan that fits your life.

Final Thoughts

Dower rights may seem like a relic. But in some states, they still carry real weight. If you live-or own property-in Arkansas, Kentucky, or Ohio, you need to know the rules.

Even if you don't, older laws could still apply to past deaths. Don't leave your spouse or children in a confusing situation. Work with an attorney. Build a plan that fits your family, respects the law, and avoids conflict later.

Call us today to discuss how we can help you protect your loved ones-and avoid outdated surprises.