In most states the law gives a surviving spouse certain legal rights that cannot be defeated by a will. Dower is considered an equitable interest in property by a spouse and it affects all types of real estate transactions.
Ohio is considered a Dower State. Dower is when a spouse who has not relinquished or been barred from it shall be endowed of an estate for life in one third of the real property of which a spouse was seized as an estate of inheritance at any time during the marriage. Such dower interest shall terminate upon the death or divorce of the spouse. There are also other exceptions such as trusts and life estate interests that dower does not attach.
Dower comes up in several different ways during a real estate transaction. When there is a sale of property from an individual to a third party - then there must be a marital status of the Grantor stated on the deed in order to determine if there is a dower interest that needs to be waived/released on the deed. For title insurance purposes, dower can be signed off or waived by having the spouse sign on the deed that is transferring the property. There have been times that the Grantor has stated that the spouse already released their dower in a prenuptial agreement previously signed or just by a dower release document drawn up. However, for title insurance purposes, the spouse will still have to sign off on the deed itself in order to waive/release their dower interest. Every now and then there may be an exception to having a spouse sign off on a previous document but it is very unusual and on a case by case basis.
Also, in a refinance for a property when an individual is in title to the property and they are married, the spouse must sign off on the mortgage that is being recorded. In order for the title company to insure the mortgage as a proper lien on the property, they must make sure that the spouse has waived/released their dower interest in the property by signing on the mortgage.
Lastly, dower may come up in the chain of title when a title company is doing a title exam when requested for either a transfer, refinance or other type of title insurance requested. When an individual is in title and is the Grantor of a deed, the marital status of the Grantor must always be detailed in the Granting clause. Should the Grantor be married, then the spouse needs to have signed off on the deed of transfer. If we find in our search that there is a Grantor without any reference to their marital status or it states that they are in fact married, but the spouse did not sign off on the deed, then the title company will make an exception to the title in Schedule B. There will usually be an exception to the title that states that the possible missing dower interest or if the title company knows for sure that there is a spouse then they will specifically state the interest of the spouse as an exception to title. When that happens there needs to be some due diligence done in order to either determine if there is a missing dower or if there is one, the spouse will need to be found, with a quitclaim deed will need to be signed by them to the current owner, notarized and recorded.
www.legalhelper.net
http://codes.ohio.gov/orc/2103
