This may be of little interest to most of you.  Dower is only recognized by about half a dozen states; Ohio is one of them.  To briefly explain the concept of dower, it is a one-third life estate interest that a spouse has in the real property of the other.  It is for this very important reason that all conveyances of interests in real property include the marital status of the grantor, along with a release of dower by the spouse if the grantor is married.  This is so even if the property is only in the name of the grantor.

There are usually only two ways to extinguish dower, aside from the spouse signing away dower rights by joining in the execution of the grant document by the title-holding spouse.  Those would be divorce and death.  However, there is another little known statute that can extinguish dower - I'm blogging about this today because I have never seen it used and until very recently, I was unaware of it.  By statute in Ohio, adultery can be a bar to dower.

Generally, while the spouses are living dower is an inchoate interest; basically that means it is a right contingent on an event, such as outliving the other spouse.  Ohio law does not permit the alienation of this inchoate interest because it is merely an incident to the principal estate and cannot be separated from it.

Thus, it is not possible for one spouse to release his or her dower rights to the other in advance of a conveyance of an interest in real property.  Even if a spouse holds no title to the property of the other, they must join in the execution of the grant document to release their dower rights to the grantee.

An absolute divorce will extinguish dower.  Likewise, if the non-title-holding spouse dies, the dower rights are extinguished; the right to dower does not pass to his or her heirs.  Until recently, I was under the impression that this was the only way dower could be eliminated.

Interestingly, however, Ohio Revised Code § 2103.05 provides:

A husband or wife who leaves the other and dwells in adultery will be barred from dower in the real property of the other, unless the offense is condoned by the injured consort.

Though I have never seen it used, this statute could allow a title-holding spouse to sell or refinance his or her home, despite a uncooperative spouse - if that spouse "leaves the other and dwells in adultery." 

I can imagine only a few instances where this would be useful.  For example, a couple who decides to separate but never follows through with getting an "absolute divorce," or they are involved in a particularly nasty divorce that drags on for a long period of time.  If the non-title-holding spouse refuses to sign a deed or mortgage, this statute could be used to allow a closing to proceed.

Most likely it would require a declaratory judgment action asking the court to declare the non-title-holding spouse is barred from dower.  Upon such a decree, a closing should be able to proceed without the obstinate spouse.

It would be interesting to know what the title insurers' perspective on this would be.  In all my years in the title business, I have never heard anyone bring up this statute.  It would surely be curiously questioned pre-closing, but I think it works just fine.