A widow or widower entitled to dower or curtesy in any real estate, who cannot have it without instituting an action, or whose right is unfairly assigned, or is not assigned within 40 days after the death of her or his spouse, may recover the same together with damages sustained upon until judgment by reason of the use and enjoyment thereof being unlawfully withheld; but as to real estate whereof her or his spouse was previously seized, but not seized at death, damages shall be recovered only from such time as she or he shall make demand upon the owner for dower or curtesy therein.