Chapter 5305: DOWER

5305.01 Assignment of dower.

When the lands of a deceased person are not encumbered by mortgage, or by judgment obtained against such decedent during life, the heir, guardian of an heir, or other person having the next immediate estate of inheritance, may assign in writing to the surviving spouse, dower therein, particularly describing such estate, which, if approved in writing on the deed of assignment by the probate judge of the county, and also by the probate judge of the county appointing such guardian, and accepted by such spouse, in writing thereon, shall be a valid assignment.

Effective Date: 10-01-1953

5305.02 Petition for dower.

A surviving spouse may file a petition for dower in the court of common pleas, against the heir, or other person having the next immediate estate of inheritance or other estate or interest therein, setting forth the right thereto, and describing the tracts of land in which dower is claimed. On the hearing the court shall render such judgment as appears just and consistent with the rights of the parties interested.

Effective Date: 10-01-1953

5305.03 Encumbrances presented.

When the rights of a lessee or lienor are shown by cross-petition filed before judgment, such rights and liens shall be regarded by the court of common pleas, and no inequality shall be allowed or injustice done to such lessee or lienor.

Effective Date: 10-01-1953

5305.04 Land situated in different counties.

When the lands in which dower is claimed lie in several counties, the petition for dower may be filed by the surviving spouse in any county in which a part of the estate is situated. The court of common pleas of such county has complete jurisdiction, and may order the whole dower of such spouse to be assigned in one or more of such counties, and out of one or more of such tracts of land, if it may be done without prejudice to the rights of any person claiming title to or holding a lien on the land.

Effective Date: 10-01-1953

5305.05 Death of plaintiff before assignment.

When a plaintiff in an action to assign dower dies before the assignment, or before entry of the final judgment, the action may be revived in the name of the executor or administrator. The court of common pleas shall determine, if not before decided, whether the plaintiff was entitled to dower in such action. If the plaintiff was so entitled, the court shall adjudge in favor of such executor or administrator a sum equal to one third of the rental value of the real estate in which the plaintiff was entitled to dower, from the filing of the petition until death, after deducting one third of the necessary expenses. The sum so adjudged in favor of such executor or administrator is a lien upon such real estate, and its payment may be enforced by sale as upon execution.

Effective Date: 10-01-1953

5305.06 Appointment of commissioners to assign dower.

When dower is adjudged, the court of common pleas shall appoint three judicious, disinterested men of the county in which the action to assign dower is pending, who are not of kin to either of the parties interested, to be commissioners. The court shall issue its order to the sheriff of that county, commanding him that by the oaths of the commissioners which may be administered by him, he cause such dower to be set off and assigned to the plaintiff in the manner set forth in the judgment.

Effective Date: 10-01-1953

5305.07 Proceedings upon return of assignment of dower.

The commissioners provided for in section 5305.06 of the Revised Code and the sheriff shall obey the order to assign dower, and return their proceedings thereon to the court of common pleas at such time as it appoints. If the court approves the assignment, it shall be entered on its records, and thenceforth the assignment is valid. Thereupon execution shall be issued, directing the sheriff to put the surviving spouse in full possession of the dower assigned.

Effective Date: 10-01-1953

5305.08 Assignment of dower when estate indivisible.

When an estate of which a surviving spouse is dowable is entire, and no division of it can be made by metes and bounds, dower shall be assigned as of a third part of the rents, issues, and profits thereof, to be computed and ascertained by the commissioners provided for in section 5305.06 of the Revised Code.

Effective Date: 10-01-1953

5305.09 Timberlands or other unimproved lands or lots.

When an estate of which a surviving spouse is dowable, or in which such spouse owns a dower interest assigned to or vested in such spouse, consists in whole or in part of timberlands or other unimproved lands or lots, the commissioners, appointed as provided in section 5305.06 of the Revised Code, shall return to the court of common pleas a true appraisement of such lands in money, and also a true appraisement of their annual rental value. Upon the hearing of such report, if it appears to the court that the assignment of dower in such lands, either by metes and bounds, or as of the rents, issues, and profits, cannot be or has not been made so as to provide such surviving spouse with an income from the lands or lots so charged commensurate with their value, as fixed by such commissioners, the court shall determine the value of such dower in money, and make an order directing the sheriff to advertise and sell such lands, or so much thereof as is necessary, as upon execution. The sheriff shall not cause the lands to be appraised, but their value as returned by the commissioners shall be the appraised value, and they shall not be sold for less than two thirds of that value. Upon the confirmation of such sale, the court shall order the payment to the surviving spouse out of the money arising therefrom the value of the dower so determined by it.

Effective Date: 10-01-1953

5305.10 Election by owner of lands to pay value of dower.

The person owning lands or lots mentioned in section 5305.09 of the Revised Code, at the time the order for the sale of such lands is made, may elect to pay to the surviving spouse the value of the dower. If such payment is made within ten days or such further reasonable time as the court of common pleas grants not exceeding ninety days from such election, the court shall make a decree divesting such spouse of any interest by way of dower in such lands. A surviving spouse owning a dower interest in timber lands or other unimproved lots or lands assigned to or vested in such spouse may maintain an action for relief in accordance with section 5305.09 of the Revised Code.

Effective Date: 10-01-1953

5305.11 Dower during pendency of petition.

When the commissioners provided for in section 5305.06 of the Revised Code have set off and assigned dower, they shall make a true appraisement of the yearly value, after deducting necessary expenses, of the real estate in which the surviving spouse is entitled to dower, estimating such value from the day of filing the petition for dower to the day of assigning dower, and return such appraisement and assignment. The court of common pleas shall adjudge the payment of one third of the whole sum so returned to the surviving spouse out of the real estate not covered by the dower, upon which judgment execution may issue. This section does not require execution to be issued against such of the defendants in dower as are minors. In such cases the dower shall operate as a lien upon the real estate, for their proportion of the judgment, until it is paid.

Effective Date: 10-01-1953

5305.12 Exemptions in estimating yearly value of dower.

In making the appraisement of the yearly value of the real estate provided for in section 5305.11 of the Revised Code, the commissioners must exclude all permanent or valuable improvements made thereon after the deceased consort of the surviving spouse ceased to be its owner.

Effective Date: 10-01-1953

5305.13 Minor heir not to be prejudiced by collusive assignment of dower.

During the minority of an heir, if dower is assigned to a surviving spouse not entitled thereto, or, if such dower was recovered by the default, fraud, or collusion of the guardian, such heir, on coming of age, may have an action against such spouse to recover the lands wrongfully awarded.

Effective Date: 10-01-1953

5305.14 Costs.

If the petition of a person claiming dower is contested, and the court of common pleas finds that such person is entitled to dower as claimed therein, the defendant so contesting shall pay all costs of the suit. If the petition is not contested, the plaintiff shall pay one third, and the legal owner of the real estate two thirds of the costs.

Effective Date: 10-01-1953

5305.15 Surviving spouse may elect to be endowed out of proceeds of sale.

In actions for partition, when an estate cannot be divided, and is ordered to be sold, and in actions for the sale of real estate by executors, administrators, guardians, and assignees, acting under a general assignment for the benefit of creditors, and in all other actions and proceedings in which the court orders the sale of real estate to satisfy a judgment or decree, the surviving spouse who has a dower interest in such real estate, and is a party, may file an answer, waive the assignment of dower by metes and bounds, and ask to have the estate sold free of dower and to be allowed, in lieu thereof, such money out of the proceeds of sale as the court deems the just value of the dower interest therein.

Effective Date: 10-01-1953

5305.16 Election by answer is a release of dower.

The answer of a surviving spouse under section 5305.15 of the Revised Code has the same effect, in all respects, as a deed of release to the purchaser of such estate of the dower interest therein of such spouse.

Effective Date: 10-01-1953

5305.17 Guardian may elect for surviving spouse.

As used in this section and sections 5305.18 to 5305.22 of the Revised Code, "incompetent person" means a person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person's self or property or fails to provide for the person's family or other persons for whom the person is charged by law to provide.

The guardian of a surviving spouse who has been adjudged to be an incompetent person may appear and answer for such incompetent person in an action under section 5305.15 of the Revised Code, subject to the approval of the court in which it is pending. Such answer has the same effect as if such spouse answered personally. The guardian shall be liable to such spouse, or the heirs, for all damage or loss sustained by the guardian's fraud or collusion, notwithstanding the approval of the court.

Effective Date: 10-01-1953; 2007 HB53 08-07-2007

5305.18 Petition to discharge land of dower of incompetent person.

A person owning real property in this state, encumbered by the contingent or vested right of dower of an incompetent person, may apply, by petition to the court of common pleas of the county in which the real estate, or any part thereof, is situated, making defendants thereto such incompetent person, and the spouse and guardian, if such incompetent person has either or both, for leave to sell any part of such real property, discharged and unencumbered of such contingent or vested right of dower. The petition must set forth the grounds for the incompetency of the person, together with a description of the land proposed to be sold. Thereupon the court shall appoint a committee of six competent individuals, of whom at least three are physicians, who, under oath, shall inquire into the competence of such person, and hear testimony to be produced by the spouse or guardian, or, if there is no such guardian, by a guardian ad litem to be appointed in the action. The committee shall make a report, in writing, of the result of its investigation, signed by its members.

Effective Date: 08-06-1976; 2007 HB53 08-07-2007

5305.19 Inquest of competence.

If the committee provided for in section 5305.18 of the Revised Code unanimously reports that the person having a contingent or vested right of dower, in its opinion, is a permanently incompetent person, the court of common pleas shall appoint three judicious freeholders to appraise the real estate described in the petition mentioned in said section, whether or not such real estate is in one or several counties. Such freeholders shall report in writing the value of each tract.

Effective Date: 10-01-1953; 2007 HB53 08-07-2007

5305.20 Proceedings on report of inquest of competence.

When the report provided for in section 5305.19 of the Revised Code is filed, the court of common pleas may direct the petitioner, by a sufficient deed of conveyance, to convey to the incompetent person, to be held by such person in fee, such proportion of the real estate described in the petition as seems just, or the court may assign to such incompetent person, to be held by the incompetent person during life, after the death of the spouse of such person, such proportion of the real estate described in the petition as seems just, for the incompetent person's support, or the court may order the petitioner to invest an amount by it fixed, in the stock of a company, or stocks created by the laws of this state, as the court designates, the profits, and dividends or distributions, arising from such investment to be applied to the support and maintenance of the incompetent person after the death of the spouse of such person. The petitioner, upon compliance with the order of the court, may sell all the real property the petitioner is possessed of, described in the petition, free and unencumbered of the contingent or vested right of dower of such incompetent person.

Effective Date: 07-30-1984; 2007 HB53 08-07-2007

5305.21 Dower of incompetent person may be barred.

When the spouse of an incompetent person conveys real estate in this state, in which such person has a contingent or vested right of dower, and the incompetent person does not join the spouse in the conveyance, the spouse may apply by petition to the court of common pleas of the county in which the incompetent person resides, or, if such incompetent person resides out of the state, then in the county in which the real estate is situated, for leave to have part or all of such real estate so conveyed, released of the dower right therein. Such petition shall set forth the grounds for incompetency of the incompetent person, and a description of the land proposed to be affected. The incompetent person, guardian, if there is one, and all persons in interest, shall be made defendants, and the action shall be proceeded with as prescribed in sections 5305.18 to 5305.20 of the Revised Code, except that instead of ordering the petitioner to sell the real estate or to convey or assign to such incompetent person any part of it, the court shall direct the petitioner to make such investment as is provided in section 5305.20 of the Revised Code, or require the petitioner to secure the amount to the use of the incompetent person by mortgage of unencumbered real estate of at least double the value thereof. Upon compliance by the petitioner with the order made, the court shall enter a judgment releasing and discharging the real estate from the encumbrance of such right of dower, and adjudge the holder of the legal title, or other party liable, to pay to the petitioner any sum withheld or retained as indemnity against such dower right.

Effective Date: 10-01-1953; 2007 HB53 08-07-2007

5305.22 Real estate may be conveyed free from dower if spouse incompetent.

(A) Any real estate or interest in real estate coming to a person by purchase, inheritance, or otherwise, after the spouse of the person is adjudged a mentally ill person subject to court order and admitted to either a hospital for persons with mental illness in this or any other state of the United States or the psychiatric department of any hospital of the United States, may be conveyed by the person while the person's spouse who is a mentally ill person subject to court order remains a patient of that hospital, free and clear from any dower right or expectancy of the person's spouse who is a mentally ill person subject to court order. Dower shall not attach to any real estate so acquired and conveyed during the time described in this section in favor of such spouse who is a mentally ill person subject to court order. The indorsement upon the instrument of conveyance, by the superintendent of the hospital to which the spouse was admitted, that the spouse of the person conveying the real estate is a mentally ill person subject to court order who has been admitted to that hospital, stating when received in that hospital and signed officially by the superintendent, shall be sufficient evidence of the fact that the spouse of the person conveying the real estate is a mentally ill person subject to court order. This indorsement shall be a part of the instrument of conveyance.

(B) As used in this section, "mentally ill person subject to court order" has the same meaning as in section 5122.01 of the Revised Code.

Amended by 130th General Assembly File No. TBD, SB 43, §1, eff. 9/17/2014.

Effective Date: 10-01-1953; 2007 HB53 08-07-2007; 2008 SB157 05-14-2008