Kaplan Law Firm S.C.

10200 North Port Washington Road, Suite 100

Mequon, WI 53092

 

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Marital Estate

Answering your legal questions about marital property

What is marital property? What is individual property?

What if my spouse and I disagree about marital property?

A sound marriage is a partnership of equals. That idea is

the basis for Wisconsin’s Marital Property Act, enacted in

1986. The law presents benefits and pitfalls. This brochure

examines both. Below you’ll find answers to several commonly

asked questions about the Marital Property Act. It’s

a complex law, full of exceptions. The intent here is not

to present legal advice, but rather to cover a few basics to

acquaint you with the law. Individual situations vary. If

you have additional questions, talk to your lawyer.

 

Why was the Marital Property Act passed?

The law recognizes that both spouses contribute to supporting

a marriage – even if only one earns a salary, or if

both draw an income but one earns more than the other.

The law says that, with limited exceptions, whatever the

couple acquires during their marriage should belong to

them equally. This translates into certain advantages. For

example, a nonemployed spouse has easier access to credit,

and each spouse can make individual decisions about

bequeathing assets (more on this later).

 

What is Marital Property?

Marital property includes all income and possessions a

couple acquires after their “determination date” (with

certain exceptions). The determination date is the latest of:

the couple’s marriage day; the date when they both took up

residence in Wisconsin; or Jan. 1, 1986. Two concepts bear

special mention:

• Survivorship marital property – This passes directly

to the surviving spouse upon the other’s death. It does not

pass under a will. An example would be a residence that

has both spouses’ names (and only their names) on the

title.

• Deferred marital property – This is a tricky concept;

a brief explanation must suffice here. This term applies to

property that would have been classified as marital property

except that it was acquired before the couple’s determination

date. Say a couple moved to Wisconsin in 1995.

All the property they brought with them did not automatically

become marital property just because they moved to

Wisconsin. But if one spouse dies, the survivor may have

rights to a certain amount of money, based on the value

of what would have been marital property if the Marital

Property Act had been in effect during the entire marriage.

The upshot is that the surviving spouse in this situation has some economic protection, even if not the beneficiary of the other’s estate.

 

Can I still have property that’s my own?

Yes, you can have individual property. Usually this is

property you owned before marriage. A personal gift or

inheritance, no matter when received, also is individual

property. For an item to be individual property, however,

you must have records that prove it belongs solely to you.

Otherwise the law presumes that all property owned

by spouses is marital property, belonging to both of you

equally.

Simply having only your name on the title to an item

does not make it individual property. The spouse named

on the title does, however, have the right to manage and

control that property. The law requires the titled spouse

to treat the nontitled spouse fairly if the item is marital

property.

 

Can individual property unintentionally

become marital property?

Yes. During a marriage, individual and marital property

can get jumbled together. The law presumes this mixed

property to be entirely marital property, unless records

prove that some portion is individual

For instance, say you had a savings account before you

were married. Over the years, you deposit portions of your

paychecks, which are marital property, and the account

continues to earn interest. You often withdraw money

to pay family expenses. That account has become mixed

property and at least partially marital property. It becomes

extremely complicated to trace a portion of that account

as individual property because multiple deposits, interest

earnings, and withdrawals have moved in and out of that

account during the marriage.

Another example: You’ve owned a summer cabin since

before you were married. After marriage, your spouse

builds an addition to the cabin, without receiving compensation

for his or her labor. That extra room boosts the

cabin’s value. The amount of increased value is marital

property, even though the cabin’s original value could

remain individual property, if documentation so proves.

On the other hand, suppose you owned 100 shares of

publicly-traded stock before you were married. You buy

no more shares during your marriage, and the stock grows

in value due to market changes. That stock, along with its

increased value, remains individual property.

It bears repeating: If you wish to maintain an item

as individual property, you must have records to trace the

ownership.

What are the credit implications of this law?

The law makes it easier for a nonincome-earning spouse

to get credit. When deciding one spouse’s creditworthiness,

the creditor must consider the value of all marital

property, including the other spouse’s income.

But the Marital Property Act also presents some risks.

Debts you incur during marriage are presumed to be in

the interest of your marriage. To collect on such a debt,

a creditor can go after not only the debtor’s individual

property, but also all marital property. For example, if one

spouse borrows money and then becomes unemployed

and can’t pay the debt, the creditor can garnish the other

spouse’s paycheck.

If you and your spouse are prone to disagree on credit

matters, consider entering into a marital property agreement.

This could limit each spouse’s liabilities for the

other’s debts. But you must give a creditor a copy of such

an agreement before obtaining credit.

 

How does this law affect my will?

Upon death, your estate will consist of your individual

property plus half of all marital property. You may leave

your estate to whomever you choose. A word of caution,

however. Suppose you leave everything to a charity.

The charity would receive your individual property,

plus half your marital property. The latter could include

half of property still half-owned and used by your surviving

spouse, such as the family car. Your surviving spouse

would end up co-owning the car with a charity, which may

not be what you had in mind. Be sure your bequests are

exactly what you intend.

What if I have no will?

In this case, your entire estate goes to your surviving

spouse, unless you have children from outside your marriage.

Then your spouse gets half the marital property and

half of your property that is not marital property. The rest

of your estate goes to your children, both from this marriage and from outside it.

 

How does the law affect life

insurance and retirement benefits?

People often pay into life insurance and deferred retirement

plans before and during a marriage. Thus, special

formulas exist to calculate which portions are marital or

individual property.

You should name beneficiaries for life insurance and

deferred retirement benefits. Then these assets can pass

directly to your beneficiaries, rather than by a will. For life

insurance, if you name someone besides your spouse as

beneficiary, your spouse still may have a marital property

claim to part of the death benefit. Keep this in mind if you

wish to name children from another marriage as life insurance

beneficiaries.

A spouse has a marital property interest in the other

spouse’s deferred retirement benefits — but only while

alive. In other words, the spouse who dies first can’t will

away half of the survivor’s retirement benefits.

Can I give away marital property?

One spouse may give away marital property to a third

party, if that spouse’s name is on the title. If both spouses

agree to the gift, it can be of any value. But if one spouse

disputes the gift, and its value is more than $1,000 (or a

larger “reasonable” amount based on the couple’s economic

situation), that spouse can go to court to void the

gift.

 

What if my spouse and I disagree

about marital property?

If you have disagreements you can’t settle, you could go to

court to seek legal remedies. Among others, these include:

• recovering property the other spouse gave away to a

third party, if that gift exceeded the limit described above;

• having your name added to a property’s title, so you

and your spouse have joint management and control rights

over that property;

• removing a spouse’s name from a title, to limit his or

her management and control rights; and

• asking for an accounting of your financial situation

 

How does the law affect divorce?

The Marital Property Act applies during marriage and

upon a spouse’s death. Wisconsin has other laws that cover

the division of property upon divorce.

Should we consider a marital property agreement?

You and your spouse may want such an agreement if you

disagree on credit matters. A marital property agreement

can serve other purposes, as well. Perhaps you both wish

to avoid the marital property system. You’d rather keep

some or all of your property separate, as individual property.

Or, you may wish to have some or all of your individual

property reclassified as marital property.

A marital property agreement allows you to either opt

into or out of the marital property law. Deciding if either

is a smart move for you depends on such factors as your

tax situation and estate planning needs. An attorney can

help you sort out the best options and also draft the agreement.

Or you may be able to use the statutory form agreements.

Either way, the agreement must be in writing, and

both spouses must sign it voluntarily and with reasonable

knowledge about the spouses’ financial circumstances.

If you seek legal help to draft the agreement, you may

be able to hire one attorney on both spouses’ behalf. But if

the agreement would seriously affect one spouse’s property

rights, it may be best for each of you to have your own

lawyer.

 

This is one in a series of consumer information pamphlets

published by the State Bar of Wisconsin.

(800) 728-7788 Nationwide

(608) 257-3838 from Madison

P.O. Box 7158, Madison, WI 53707-7158

Email service@wisbar.org

On the Web at www.wisbar.org

© State Bar of Wisconsin