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
• 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
• 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
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
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
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
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
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
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
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
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
On the Web at
© State Bar of Wisconsin