Wis. Stat. 861.01 Ownership of marital property at death.
(1) Surviving spouse's one-half interest in marital property. Upon the death of either spouse, the surviving spouse retains his or her undivided one-half interest in each item of marital property. The surviving spouse's undivided one-half interest in each item of marital property is not subject to administration. Ownership and management and control rights are set forth under ss. 857.01 and 857.015.
(2) Interest of a 3rd party in marital property. A 3rd party who is a successor in interest to all or part of the decedent's 50 percent interest in marital property is a tenant in common with the surviving spouse.
Upon your death, your estate consists of your individual property, plus one-half of all marital property. Individual property is property you owned before marriage and may also include property that was inherited during your marriage, provided that you kept careful records to keep such property separate from marital property. The key concept with individual property is that you must have records to prove it belongs solely to you. Marital property is all income and possessions a couple acquires after their “determination date.” Your determination date is the latest of: your marriage day; the date when you both took up residence in Wisconsin; or Jan. 1, 1986. For many couples in Wisconsin, the bulk of their assets are marital property. Wisconsin law also has a presumption that if you cannot prove that something is individual property, then the law presumes it is marital property.
Therefore, when you die, you have the right to form a Will or Trust that directs what happens to your individual property, and to one-half of the marital property that you share with your spouse. The rest of your marital property belongs to your spouse who may dispose of their half as they wish. If you have questions about this, or would like to discuss setting up a plan for your estate, please contact me, to schedule an appointment.
The Wisconsin State Bar has a helpful handout on Marital Property that covers this topic in much greater depth, which was used as a basis for parts of this blog post. The complete handout is available at this link.
