Wisconsin law, for title research

Is Wisconsin a community property state? Yes: marital property under chapter 766, and why a spouse off the deed may own half

Every rule below is quoted from the Wisconsin Statutes or another official source, linked and checked on the date shown. General information, not legal advice.

What counts as marital property in Wisconsin?

All property of spouses, unless the statute classifies it otherwise. Section 766.31 makes all property of spouses marital property except what chapter 766 classifies otherwise and what subsection (8) describes, and presumes all of it to be marital. Income earned or accrued by either spouse, or from either spouse's property, during marriage and after the determination date is marital, with listed exceptions.

The determination date is the latest of three moments: the marriage, the date both spouses are domiciled in Wisconsin, or January 1, 1986. Property a spouse acquires afterward is individual property if it came as a gift or inheritance from a third person to that spouse alone, in exchange for other individual property, or by a decree or agreement designating it individual. Spouses may reclassify property by gift, by a conveyance both sign or by a marital property agreement. The two other routes in section 766.31(10) are narrower: a written consent concerns a life insurance beneficiary or premiums under section 766.61(3)(e), and a unilateral statement classifies income from non-marital property under section 766.59. Mixing also matters: section 766.63(1) reclassifies other property mixed with marital property as marital, unless it can be traced.

Property from before the determination date has its own rules. Section 766.31(6) makes property owned on that date individual property when it is also the date of marriage; if the marriage came first, the property is not classified by the chapter and subsections (8) and (9) govern it. Subsection (8) says that, except as the chapter otherwise provides, the chapter does not alter the classification and ownership rights of property acquired before the determination date.

Does a Wisconsin spouse own half of property in the other's name?

If it is marital property, yes. Section 766.31 gives each spouse a present undivided one-half interest in each such item. Management is a separate question: section 766.51 lets a spouse acting alone manage and control such property held in that spouse's name alone, and says the right to manage and control does not determine classification or rebut the presumption.

So a deed into one spouse's name does not, by itself, settle how the land is classified between the spouses. Recording a marital property agreement is optional under section 766.58(11), so the record may not show one.

A buyer has separate protection. Section 766.57(3) says property purchased by a bona fide purchaser from a spouse having the right to manage and control it is acquired free of any claim of the other spouse, and a marital property agreement cannot change that. Section 766.57(2) says notice of a marital property agreement, a marriage or the termination of a marriage does not affect that status. A bona fide purchaser buys for value, in good faith, without notice of an adverse claim by a spouse and not knowingly party to fraud or illegality. The homestead rule below still applies, because section 766.51(8) says the management section does not affect the homestead signature rule.

Do both Wisconsin spouses have to sign a deed?

In two cases these sections name, yes. Section 766.51 lets spouses manage and control marital property held in both their names, other than in the alternative, only if they act together. And section 706.02 requires a conveyance that alienates any interest of a married person in a homestead to be signed, or joined by separate conveyance, by or on behalf of each spouse, except a conveyance between spouses and, on a purchase money mortgage, the purchaser alone. Section 706.01 defines a homestead as the dwelling and so much of the land around it as is reasonably necessary for use as a home, not less than one-fourth acre if available and not exceeding 40 acres. Section 706.02(1)(d) separately requires a conveyance to be signed by or on behalf of each grantor.

Property held in the alternative, as "one spouse or the other spouse," may be managed by either spouse acting alone under the same section, except that this does not affect the homestead rule, under section 766.51(8).

How do Wisconsin spouses hold title to real estate?

Section 766.60 offers statutory title forms: one spouse or the other, or both spouses, followed by the words as marital property, or one spouse as individual property. Using the words survivorship marital property instead of marital property makes the decedent's rights vest solely in the survivor at death, and the first spouse to die cannot dispose of any interest in it.

Section 766.605 sets a default for the home: a homestead acquired after the determination date, held exclusively between spouses with no third party when acquired, takes the survivorship form if no contrary intent is expressed on the instrument of transfer or in a marital property agreement.

Other forms are allowed, with a twist. Section 766.60(4)(a) lets spouses hold property in any other form the law permits, and the incidents of that tenancy control where they conflict with the classification rules, with stated exceptions. Except for a gift from a third party or a marital property agreement, a document expressing a joint tenancy exclusively between spouses after the determination date creates survivorship marital property, and a tenancy in common exclusively between them is treated as marital. A marital property agreement must be signed by both spouses and is enforceable without consideration, subject to the defenses in section 766.58(6), including an unconscionable or involuntary agreement.

What happens to Wisconsin marital property at divorce or death?

At divorce, section 767.61 leaves gifts from third persons and property received by reason of another's death, such as an inheritance or a transfer on death arrangement, with the party who received it unless refusing to divide it would create a hardship on the other party or the children of the marriage. The court presumes everything else is divided equally, but may alter that after weighing listed factors. After a dissolution, except as a decree or a later agreement of the former spouses provides otherwise, section 766.75 makes each former spouse an owner of an undivided one-half of former marital property as a tenant in common.

At death, section 861.01 lets the survivor keep an undivided one-half interest in each item of marital property, outside administration, and makes a third party who succeeds to the decedent's half a tenant in common with the survivor. A separate election covers deferred property, which section 851.055 defines as property not classified by chapter 766 that was acquired while the spouses were married and would have been marital had it been classified. If the presumption is rebutted for an asset, section 861.02(2)(a) presumes it deferred.

Section 861.02 lets the survivor of a decedent domiciled in Wisconsin elect up to 50 percent of the augmented estate it defines. The petition is due within 6 months after the death under section 861.08(1), subject to extension, and section 861.10 allows a waiver in an enforceable marital property agreement or a signed document filed with the court. A surviving spouse may petition, under section 861.21(2), to have the decedent's interest in the home assigned to the spouse, subject to the section's conditions.

What a title search checks on a married Wisconsin owner

A title check before buying reads how each deed in the chain names the owners and any statutory title form, with images, who signed each conveyance it finds, any recorded agreement between the spouses or reclassifying conveyance, and any divorce or probate record it finds affecting the chain. How land is classified, and whether a homestead signature was needed, are legal conclusions for a Wisconsin attorney.

The Wisconsin rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Wisconsin Statutes 766.31; Wisconsin Statutes 766.01; Wisconsin Statutes 766.51; Wisconsin Statutes 706.02; Wisconsin Statutes 766.60; Wisconsin Statutes 766.58; Wisconsin Statutes 766.75; Wisconsin Statutes 767.61; Wisconsin Statutes 861.01; Wisconsin Statutes 861.02; Wisconsin Statutes 766.001; Wisconsin Statutes 766.57; Wisconsin Statutes 706.01; Wisconsin Statutes 766.605; Wisconsin Statutes 766.63; Wisconsin Statutes 766.59; Wisconsin Statutes 851.055; Wisconsin Statutes 861.08; Wisconsin Statutes 861.10; Wisconsin Statutes 861.21. Each row links the section it summarizes.

Questions people ask

More on how Wisconsin property law shapes a title search: title research in Wisconsin.