Episode 76: Legal Strategies for Farm Families: Dower Rights and Joint Survivorship
In this episode of AgCredit Said It, host Libby Wixtead sits down with Ryan Conklin, lead attorney at Wright and Moore law firm, to delve into the intricacies of dower rights and joint survivorship. Ryan shares his expert advice on how these legal concepts impact farm finance, succession planning, and property ownership. Whether you're a seasoned farmer or just starting out, this episode provides valuable insights to help you protect your assets and ensure a smooth transition for future generations. Tune in to learn practical strategies for managing your farm's financial future and avoiding common pitfalls in estate planning.
Main Topics Covered
- Dower Rights:
- Historical background from Old England.
- Application in modern-day Ohio and other states.
- Impact on property ownership and farm succession.
- Practical examples involving mortgages and property rights.
- Joint Survivorship:
- Explanation of joint survivorship and its benefits.
- Differences between tenants in common and joint survivorship.
- Importance in farm succession planning and avoiding probate.
- Practical advice for farm families on implementing joint survivorship.
- Practical Advice:
- Importance of transparency and planning in farm finance.
- Common mistakes and how to avoid them.
- Encouragement to work with professional teams for estate planning.
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- Transcript
Speaker 1 (00:08):Welcome to AgCredit Said It, your go-to podcast for insights on farm finance and maximizing your return on investment. Join us as we talk to industry leaders, financial experts, and area farmers, bringing you skillful advice and strategies to grow your farm's financial future ag credit setting where farm finance goes beyond the balance sheet.
Libby Wixtead (00:38):Welcome back to another episode of AgCredit Said It where we take you beyond the balance sheet of farm finance. Today we are talking with Ryan Conklin, lead attorney of Wright and Moore law firm sharing his expert advice on dower rights and joint survivorship. Thanks for joining us, Ryan.
Ryan Conklin (00:56):Yeah, thanks for having me back. Libby, I've got my AgCredit Said It punch card that I keep hitting, so I think I get a free sandwich here soon.
Libby Wixtead (01:05):Yes, probably we should do that for you.
Ryan Conklin (01:09):Perfect.
Libby Wixtead (01:10):Since you are a returning guest, we're just going to skip your introduction. I think everybody knows who you are and we're just going to jump right into Dower rights and joint survivorship, which I think is a topic that comes up a lot when we're talking loans and when you guys are talking farm succession. So could you briefly explain what Dower rights are and how they apply in the context of farm or commercial property, and is that different than any other assets like your primary residence?
Ryan Conklin (01:42):Yeah, of course. So I'm going to paint a picture for your listeners here, Libby, that'll hopefully help them visualize the concept of dower rights a little bit more. So let's go back to the motherland of Old England. It is the 18 hundreds. The English just took an L in the American Revolution, but they've got their system of laws, which is largely what the American system of laws was based on, and one of those laws is called dower rights, or one of those concepts is called dower rights. So pretend we've got a married couple, let's call them Jason and Kayla, just for example, Jason and Kayla live in Old England since it is the 18 hundreds, we are still conforming to traditional gender roles where hardworking husband, Jason does all the work on the land and makes the living that way, and Kayla is tending the home with children, so on and so forth. Jason makes the unwise decision one day of leaving Kayla getting divorced, and compared to our current system of family law and divorces, since Jason was the hardworking farmer, he owned all the property, he did all the work there.
(03:18):The way old English law said that, well, Jason gets to keep everything. So this concept of doer rights was introduced so that Kayla could exit that marriage and not be totally destitute, totally broke, totally poor because she couldn't own land back in the 18 hundreds. So the dower rights concept was introduced to ensure that on the way out Kayla would at least receive some sort of interest in that property. Fast forward to we're leaving the motherland, now we're fast forwarding to 2025 Ohio, and we are one of those states that still has those old Dow rights. So question for you, Libby. Can you name one or both of the other states that still have dower rights?
Libby Wixtead (04:08):Oh man, I didn't do my homework. I cannot.
Ryan Conklin (04:11):It's okay. This isn't a graded podcast, so you'll be fine there. Arkansas and Kentucky are the other two hope that wins somebody some money on trivia night. But today, if you have that same fact pattern, husband and wife getting divorced and all the property was in the husband's name or in the wife's name, these dower rights say that one third of that property interest belongs to the spouse that is exiting. So this most often applies to real property, which is important for ag credit listeners since a lot of debt is tied into their land, their farms and their homes.
Libby Wixtead (04:55):So when we are thinking about, let's say a mortgage and you have, let's say we have this a lot, husband comes in, he wants to and have a loan, we want to secure it with, let's say they're buying a small piece of farmland and we want to secure it with their primary residence, wife is not going to be on the loan. And so we always say we need those dower rights signed over because we'd want the full rights of that property. Now, is there any difference between home and the actual farmland that they're getting or is it all one together?
Ryan Conklin (05:45):It's treated as all one together here. So that's real property land that's acquired during the marriage or even sometimes property that you're bringing into the marriage, but trying to finance in the situation you described, Libby, we're applying dower rights across the board to those. So it is a pretty unique fact pattern and every marriage works their own ways. But yeah, it does happen where you get a client or a member borrower that comes in and says, Hey, I want to do this, but I don't want my spouse to be involved. And because of those dower rights, in order to have a clean mortgage where you have that first lien or first encumbrance position on that property, ag credit would be asking that borrower, Hey, we need your spouse involved. So he or she can subordinate or lower their dower interest in the chain of encumbrances so the mortgage can be there at the top.
Libby Wixtead (06:58):Okay. So then my next question is just kind of like my husband and I, my husband had purchased a house before we got married. Then we got married. So do I automatically get ownership in that house then?
Ryan Conklin (07:12):Yeah. So have we done this, Libby, I'm pretty sure that you own a partial interest in your house. I don't feel like I'm divulging anything that isn't on public record already, but I'll hop off here and take a look at that and if it's not right, I I'll get Adam on the horn right away to get that fixed. So in terms of automatic ownership or automatic name on the deed rights, that doesn't quite trigger unless you take special action like completing a new deed. But if you had that same fact pattern where Adam owned the house, you got married, he went in to mortgage the house the next week, the title company or your lender would absolutely ask you Adam's new spouse to subordinate your dower interest on the property if something was going to be financed.
Libby Wixtead (08:11):Okay, that's very interesting. What is the significance, I guess, of dower rights for farmers and farm families when it comes to specifically succession planning then?
Ryan Conklin (08:25):Yeah, aside from the impact on the borrowing side, which we've hit on a few times here, it really dower rights make the case for not really having individual ownership of property. Really kind of treating this as something that spouses own together as a group. Because in the end you might try to keep assets separate, but we talk with clients all the time that you might have separate assets coming into the marriage or separate assets that you've inherited or been gifted, but over time that line starts to blur. You have joint funds in a joint bank account that pay the property taxes. You have joint funds that pay the insurance policy that covers all the properties. Those items over time start to break down those marital protections, and then of course you still got the dower issue to deal with there as well. So it really promotes this idea of treating it all as one pot, one group of assets and having the ownership in joint names, husband and wife or spouses together.
Libby Wixtead (09:39):Okay. So let's say we have a farm family who has, they're looking to do a farm succession and the transition and let's say they have two sons and a ot and they're looking at, okay, I only want to keep it within that family, the blood. We don't want the in-laws to come in or have ownership if this passes on, how does Dower rights play into that if they're splitting in a third, a third, a third? Like we say, we don't necessarily think that's a great idea sometimes. Yeah,
Ryan Conklin (10:14):Yeah. Generally speaking, when you have assets like continuing with land, when you have land inherited just in somebody's personal name, your ability to restrict or attach some strings to that property in order to protect it long-term for grandchildren as an example, is pretty limited. Once that individual inherits that property, they get the full array or full bundle of rights that come with property ownership, the ability to mortgage, the ability to transfer, the ability to sell, the ability to destroy some of those rights that come with it. But one of the most common tools that we use to restrict that ownership and ensure that in-laws don't get access to it would be through the use of business entities. Those business entities, if properly constructed, provide a way for those parents or grandparents to put some rules in place to prevent in-laws from accessing that land ownership. And even if they are successful, they have a good divorce attorney or something, those rules would kick in to provide buyback rights in favor of the family members.
Libby Wixtead (11:38):So does Dower rights play a role then, if anything goes through probate?
Ryan Conklin (11:42):So if something is going through probate, it means a spouse is already dead
Libby Wixtead (11:50):Well, but like transition and if they don't have anything set up having that spouse or kids, how does that play into it? I mean,
Ryan Conklin (12:03):Yeah, can it come into play if one of those errors is inheriting assets and they're married, does that kick in right there? So no, not necessarily. Let's say that Libby, you and your brothers are inheriting assets from a probate proceeding standpoint. Adam doesn't have to be involved in the probate proceedings on that side, but similar to our conversation from earlier, if you go into mortgage, that inheritance after it's received ag credits or the title company or your lender, whoever it is, is going to treat Adam as having dower rights in that inherited property even though he didn't participate in the probate proceedings.
Libby Wixtead (12:58):That sounds like that can get real messy real quick.
Ryan Conklin (13:01):Oh, I mean, farm succession's never messy. Libby, when would that ever happen? If something gets messy,
Libby Wixtead (13:12):Right? That's why we try to do things and set things up ahead of time to make it as smooth as a transition as possible. So we'll move away from Dower rights a little bit, and we're talking about something that helps maybe not get rid of the Dow rights, but helps the whole Dower right situation of joint survivorship, especially when it comes to buying land. What is, and how does joint survivorship work, particularly when it comes to farming or agricultural land?
Ryan Conklin (13:45):Yeah, so let's go back to our happily married couple, Jason and Kayla that we were talking about earlier. Let's say that they own a farm together. Jason and Kayla are both on that deed, Ohio law says, that there's really two ways to have that joint ownership in place. Option number one is what's called tenants in common. That means with tenants in common, Kayla owns 50% of the property and then Jason owns 50% of the property. And a really key part of that 50% is that each of them can do whatever they want with their 50%. If Kayla wanted to sell me her 50%, she would be able to do that just totally outside of Jason's purview, except for the fact that he would have to release dower rights when transferring that 50% to me. So that's option number one. Option number two is this concept of survivorship or joint with rights of survivorship that Libby you mentioned.
(14:56):So with survivorship rights, we are saying that Kayla and Jason own the whole together and cannot exercise any rights related to that property unless they exercise them together. So that means mortgaging selling, leasing, any of those rights would require both of them to act, and that means you've got some protection from the spouse going off and doing something on their own, but you've also got protection in the event that one spouse passes away. Survivorship is a probate avoidant ownership style tenants in common, unless a farmer or landowner takes special action. Tenants in common would go through probate if somebody passed away.
Libby Wixtead (15:54):I guess I'm just thinking again, of whole farm transition, would it make sense for a family, and I know this is probably going to get me a lawyer response if it depends, but would it make sense if you're trying to work on having ownership for your children by also doing a joint survivorship and putting you and your spouse and then putting your kids on there as well, and maybe even in that case, maybe even their spouses, is that something that in a certain situation would be helpful for that family in a transition?
Ryan Conklin (16:30):Yeah, we've seen this a couple times before, and I'm sure ag credit team members have as well where let's say spouses or parents and children are buying a farm together, and the goal long-term is for those children to end up with the property playing. The odds here a little bit, the children are likely to outlive their parents. What we've seen happen if they're not going to have a business entity set up to buy it, that we would just have all of those family members on the deed together jointly with rights of survivorship. So they would take ownership, the four of them as a group, and as each one passes away, that ownership would consolidate to the surviving individuals. But in that same fact pattern, let's pretend mom and dad are gone, the children don't get along anymore, they want to split up the property. It is possible to sever those survivorship rights between the two children and let them control their own halves. So yeah, the survivorship setup is a very common succession planning tool and including in the farm purchasing context. Well,
Libby Wixtead (17:50):Okay, so I just want to just clarify this. So joint survivorship is different than having ownership as a third, a third, a third, or however that would work.
Ryan Conklin (18:03):Yeah, this is a great venture into some of the hardest concepts to explain in a meeting. So this is a good exercise for me. Let's say all of the bender children, very well behaved bender children are on this deed together, a third, a third, a third. Oftentimes we're seeing family members or landowners say, for a 90 acre farm, here's my 30 acres, here's my brother's 30 acres, and here's my other brother's 30 acres. When actually from a legal standpoint, if it's survivorship, each of you owns one third of every acre of the property not splitting off in 30 acre sections. So that's one of the oddest concepts to understand for a lot of landowners, but that doesn't mean you can't go through the process of dividing it up into 30 acre sections. That is possible as well. You just have to go through the lot split and surveying process.
Libby Wixtead (19:19):So just a lot more fees and time and just more costly and timely to spend on it. And
Ryan Conklin (19:28):Just generally speaking, again, it's very hard to divide up farmland in nice equal sections for all the listeners. Think about your own farms. Even the most consistent ground where it is just flat topography is even no woods. The drainage is fine. Even in those circumstances, you might be dealing with differences in frontage. You might have some wet spots on the farm. The soil types might differ from one end to the other. It is just really hard to get a consistent plot or a consistent tract divided up from the same property. And that's why most often we see clients not try to go that route of dividing up land
Libby Wixtead (20:24):If only every acre was a hundred percent tillable and had all of the best ground dirt soil and just the drainage was excellent. Yeah, it just doesn't work.
Ryan Conklin (20:37):That is the world that we seek to live in one day, Libby is every acre is just maximized to its fullest potential.
Libby Wixtead (20:46):Right. Okay. Let's talk about spouses now that are both actively involved in managing the farm business. How does joint survivorship influence decision-making then if one spouse passes? Let's just talk directly right into that.
Ryan Conklin (21:08):Yeah, so we've got just make sure got this right. We have a farm operating, maybe it's Schedule F, maybe they have a business or a partnership between spouses, and we're saying that one of them has passed away.
(21:24):So in that circumstance, if we were planning ahead of time for that spouse passing away, survivorship is one of those tools that we would look to use for those surviving spouses. Looking at your own bank accounts, if you've got a joint bank account, husband and wife together, the banks always start from the position of that being a survivorship account, meaning if one spouse passes away, the other can come in and immediately gain access to those funds. The same concept can work in grain equipment, inputs and land vehicles, trucks, trailers, all of those are eligible for survivorship rights between spouses in the absence of survivorship rights where assets can quickly in efficiently move over to the surviving spouse. At that point, you're looking at a probate effort and where we see maybe not financial stress, maybe just clean old fashioned stress, where we see stress creep in is where you're trying to pay bills, you're trying to make payments on a loan, and funds or assets or items are locked up because you're having to go through the probate process, and we really don't like to see that.
Libby Wixtead (22:51):Yeah, that's really interesting. I think that's one thing that we don't really talk about when it comes down to all of the details of how many farmers have their spouses on their grain. I can't think of many that happens to, and just with all of, like you said, the vehicles, especially bank accounts, I know several that have a farm account and it's just the main operator that's on that farm account. I feel like we almost need to replay that response again so everyone in the back can hear what you just said and how important that is, especially for young couples that are starting out and especially when you're joint going into this transition. I mean, that right there was golden. So I hope everybody will replay that back and listen to what he said there because I know that's not happening on a lot of farms.
Ryan Conklin (23:49):I can go if I have permission from the host here, I can go on a rant here for a moment. Just a moment,
Libby Wixtead (23:56):One moment. That's all I'll give you.
Ryan Conklin (23:58):Here we go. Going to get my pre rant stretches in. So probably the most common fact pattern that we run into with farm families where spouse passes away is with trucks and trailers having to go through probate. It is by far the most probated asset that I've dealt with in 10 years. And it's also a very frustrating asset because probate is totally avoidable with trucks, trailers, vehicles, really all you have to do on those semis or hoppers, anything that you've got, goosenecks is just when you go into renew the tags each year just to add a beneficiary or add survivorship to those assets or put them into a business, but so often they get missed. So the supplement to this fact pattern is it's probably about once a year I have to tell a client, you're either going to have to drive something on the road with expired tags because you can't renew the tags because it's tied up in probate, or they have to go find something else to be able to use a truck or trailer to move grain, move livestock, something like that. So truck and trailer probate is totally avoidable, just takes a few minutes and a dollar at your clerk of court's title division saves a lot of headache and saves you from having to drive with expired tags on the road. There we go, rant over.
Libby Wixtead (25:28):I know you guys can't see Ryan, but he stood up in his seat straight and he got very intense for a second there. So he has seen several farm families come through his office. And that's one thing that through our office is here at Ag Credit. Those are things that we deal with and trying to help people through. So again, just keep that in mind. If you didn't hear it, hit that 30 second back button and then listen to that again.
Ryan Conklin (25:58):That might've been a 90 seconds
Libby Wixtead (26:00):Or 90 seconds.
Ryan Conklin (26:02):And to add to that, Libby, all I'm trying to do is get people to not pay me money. Don't pay your attorneys more than you have to. Probate costs money, it takes time. It takes extra effort on your part, it causes a disruption in the operation. Just that little bit of extra work upfront can save some time and some money on the backend.
Libby Wixtead (26:26):And it always happens at a terrible time and planting harvest. And it always seems like when tags are just about to expire, it is the same story we hear with people and we just, again, we're here to help you guys. And Ryan doesn't want any more money from the way it sounds. He doesn't, I don't
Ryan Conklin (26:47):Put that money towards some other write off or apply it as extra principal payment on your ag credit loans folks.
Libby Wixtead (26:56):There you go. There you go. Get those loans paid down. Okay. So I guess with that, in your experience, since we just talked about what you haven't seen, do you typically see people doing joint survivorship deeds or is this something that you, again, like the whole survivorship on your chats and that, are you suggesting that people do this on their deeds? Are you encouraging them to do this going forward and they come to your office?
Ryan Conklin (27:31):Yeah. Yeah. For spouses, we would encourage survivorship status on there. And if you have a deed on your desk as you're listening to this or if you have one handy close by that you can go check that has a farm that you bought with a spouse, all we're looking for is five words on that deed that can make the difference in survivorship that jointly with rights of survivorship is the difference between clean and easy transfers if something bad happens versus some headaches if something bad happens. So we do encourage clients to make sure that those five words are on the deed for farms that they buy together or parents and children, spouses, whatever combination that might be. And still, despite this being a concept that's been around for Ohio law, we still see deeds come through farms that are bought recently where spouses are not in survivorship on there, and we have to add it as part of the succession planning process.
Libby Wixtead (28:45):So that is something that I typically see when I get a purchase contract that hits my desk or we're talking to the title office. The title office will sometimes ask us, well, how do they want the deed? And I think that's something when you are purchasing land that you need to make sure when you're working with that title office that you have that joint survivorship deed created and they know exactly how the names need to be on there and have that joint survivorship added. I think you would agree with that, Ryan.
Ryan Conklin (29:19):Yep, absolutely would. And then to add to that, if you and your professional team have created a landholding business for your properties, do not buy those new farms in your personal names that land LLC that you probably spent money on is there for a reason if you are buying it in your personal names only to go to your attorney and say, Hey, we bought a farm in our personal names. Can you put in our LLC? You're paying for extra work there.
Libby Wixtead (29:49):Yeah, and that's something like when you go to alien auction and you're filling out that paperwork afterwards, make sure you do either talk to your attorney or have a plan ahead of time going into that. I do see a lot of discrepancies that do come through and hopefully our listeners have some good professionals on their side that can kind of say, whoa, let's back this up. Let's take a timeout here. We need to go back before that closing happens and that deed gets filed without the proper name and that joint survivorship on it. So we've talked about a lot of positives of joint survivorship. Is there any, well, and I guess we did talk about a little bit of some family drama there that could happen with joint survivorship. Is there any other disadvantages that you can think of
Ryan Conklin (30:36):Other than the ones we discussed because of dower rights, having to involve those spouses anyway, so that's kind of back to my point that if you're owning assets as a spouse and just your personal name and you're married, really, that spouse has to be involved in the financing or sale process anyways, then we might as well look at going through retitling into survivorship regardless. If we weren't doing survivorship then and a spouse wanted to keep land and his or her personal name at that point, we would look to do some sort of transfer on death designation that we can put on the county records as well, just to make sure that we have probate avoidance in there. But otherwise, survivorship is a very common tool. It's a very useful tool, not a lot of downside, and at least the downside that is there, it's already created by those dower rights that we mentioned earlier.
Libby Wixtead (31:41):So the risk is very, very low to put those deeds into that. What are some mistakes that you see other than not putting the land in the right name of if you have an entity in that, but for joint survivorship? And I would even say going beyond land to kind of some of the things you talked about earlier, what are some mistakes that you see people do when they think they're doing the right thing but they're not doing the right thing?
Ryan Conklin (32:11):Yeah, here's a good one. This is pretty rare because way back when before we had computers and people were using typewriters to do forms, Libby, you've probably seen some deeds that have some typewriter language, the old English font and everything. Yes. Yeah, we've seen those before. One mistake that we've had come up from time to time is that those old form deeds would say, this property goes to Adam and Libby Wixtead. There are heirs and signs forever. That is sometimes misconstrued is creating a survivorship status that airs and assigns forever language. And the only way to definitively create a survivorship relationship is you got to have survivorship language in there somewhere jointly with rights to survivorship jointly remainder to the survivor of them, something that is specifically saying that survivorship exists. So that doesn't happen as much anymore because we don't use form documents and typewriters, at least I don't think we do. We had a typewriter in our office up until a few years ago, but that's been one mistake we've seen before.
Libby Wixtead (33:41):The question is, does anybody know how to use the typewriter now that's in your office?
Ryan Conklin (33:45):Yeah. Oh yeah. I am proudly old enough to remember using typewriters. Libby, I know my youthful appearance might not show it, but yes, I still know how to use those typewriters and fax machines too.
Libby Wixtead (34:04):Oh man, good old fax machines.
Ryan Conklin (34:07):The one that I've been looking for that I haven't found yet is a good old fashioned dictaphone. That's one I haven't tracked down yet. So
Libby Wixtead (34:19):Yeah, good luck. We'll finish up here with your best advice to give farm families who are just beginning to navigate Dower rights and joint survivorship and their estate planning.
Ryan Conklin (34:36):First piece of advice is be transparent that that fact pattern, Libby, that you gave earlier about one spouse comes in, wants to mortgage a bunch of land, wants to borrow a bunch of money, ideally you do not want to go through, I think from a planner's standpoint, you do not want to go through the process of going home to tell that spouse, Hey, I need you to show up and sign these documents.
Libby Wixtead (35:10):Because
Ryan Conklin (35:12):When you're doing that, I believe lenders and banks these days will normally have that spouse personally guarantee or personally sign on all that paperwork. It's not just a dower release. He or she is also responsible for the loan. So one spouse's financial decisions could ruin the other one in the process, and that's something that I think is best to be transparent about versus just trying to do it in a vacuum. I think that transparency piece is one of it or one item. The second one is, it might sound over simplistic here, but just plan everything we're talking about here is pretty inexpensive to do. And we mentioned earlier that, hey, if you don't have these items in place like survivorship, your backend costs to run through probate or manage in a state could go up because there wasn't as much front end planning. So as usual, it just comes down to talking to your professional team, being critical about where your plan sits and how it meets your goals, and then letting those professionals adjust the plan accordingly.
Libby Wixtead (36:34):Yeah, and I think we need to reiterate, I think we talked about this in our last podcast episode of get a great professional team around you. Get people that you trust, people that are going to be helpful for you. And especially with generational farms, we all want farm. All of us professionals want farming to move on to the next generation and continue on, and we're here to help you, and we want things to be smooth. Nobody wants to go through probate. As a lender, I don't want things to have to go through probate as a lawyer, you don't want to have to deal with that. And even as a family that's dealing with a loss of a loved one and still having the loss of them just carry on through probate is very tough. So like Ryan said, there's a lot of things we can do on the front end, especially when you're young, when you first get married, when you have kids, if you don't have a will, get a will. And just those are the things that we need to start early on because in farming, anything can happen to anybody at any time. I mean, even without being involved in farming. But if you have these things in place, things will be able to move in your operation. Your surviving spouse will not.
(37:56):Things will move for them more smoothly. So Ryan, any last words on that?
Ryan Conklin (38:04):I don't believe so is a great topic and as usual, really appreciate the invitation to talk to AgCredit's members and guests and friends. So we'll keep that punch card handy for the next episode.
Libby Wixtead (38:20):We'll get that sandwich set up too when I come down and do a farm visit for you. Perfect. Well, thank you Ryan. You are truly a friend of AgCredit and we really appreciate your advice, your free legal advice. I should say. It's always great to chat with you and thank you to our listeners for tuning into another episode of AgCredit Said It. We will talk to you guys next time.
Speaker 1 (38:52):Thank you for listening to AgCredit. Said it. Be sure to subscribe in your favorite podcast app or join us through our website at agcredit.net so you never miss an episode.