How to Pass House to Spouse Automatically Upon Death?

Attorney Thomas B. Burton answers the following question: "How to Pass House to Spouse Automatically Upon Death?"

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Hello, I'm Attorney Thomas Burton and welcome back to our Question and Answer Series.

Today's question is the following -

"Wisconsin home deed lists husband and wife grantee. What happens upon death of spouse? What should it say to pass to survivor?" And then there's a note that adds 'No mortgage.'

This is an excellent question and one all married couples in Wisconsin should consider regarding their real estate, especially a home which you share that you would want to go to the surviving spouse upon death. The great news is, in Wisconsin, we have a way of holding property that automatically bypasses probate court upon death and that's called Survivorship Marital Property.

So it says husband-wife grantee, so you want to check the actual language of the deed and I recommend having it, if you want survivorship marital property, the clearest way is to list it as for example, John Smith and Jane Smith, husband and wife as survivorship marital property. So those three words as survivorship marital property is the key to conveying that you want the property held as survivorship marital property and reflect that type of ownership.

So you can find the language about this in Wisconsin Statute 766.60(5) and I'll read you an excerpt from the statutes.

Sub 5A says, If the word 'Survivorship Marital Property' and those are in quotes, ‘Survivorship Marital Property' are used instead of the words 'Marital Property' in the form described in subsection one or two, the 'Marital Property' so held is ‘Survivorship Marital Property'. On the death of a spouse, the ownership rights of that spouse in the property vest solely in the surviving spouse by non-testamentary disposition at death. 'Non-testamentary' means outside the will. So it vests solely in their surviving spouse.

So if that's what you want which a lot of married couples in Wisconsin do, you want to make sure the deed reads ‘Survivorship Marital Property', those three words are the key. The first deceased spouse may not dispose that death of any interest in ‘Survivorship Marital Property'. Holding marital property in a form described in Sub 1 or Sub 2 does not alone establish survivorship ownership between the spouses with respect to the property held.

So they're saying you can own property as marital property but it's not necessarily survivorship marital property.

So again, the statutes say 'Survivorship Marital Property' in quotations, so if that's what you want meaning that automatic bypass of probate court upon the first spouse's death for your home, for real estate, make sure the deed reads survivorship marital property and if you're watching this video and buying property as a husband and wife and that's one of your main assets, holding title as survivorship marital property is a great way to avoid probate court upon the death of one of you because remember, in Wisconsin, the small state probate limit is $50,000 and a lot of people who own real estate, after they own it a few years, often the equity is worth more than $50,000 for a lot of average homes and so once you get equity over $50,000, let's say you don't even have any other probate assets but that alone could draw you into a probate court action outside of the small estate limit. So easier to bypass this by holding the property a survivorship marital property and I know I've said it a few times but go to Wisconsin statute 766.60(5) and make sure it's 'Survivorship Marital Property' on the deed, if that's how you want it to pass meaning no probate upon the death of the first spouse.

So it's good you're looking into this.

At my office, I often see confusion about this and the answer is real estate follows the title, the deed, so you need to really look at the deeds to all the real estate you own to see what's going to happen upon death and if you're not sure, I suggest meeting with a qualified estate planning attorney and when you put in place your, your entire comprehensive estate plan, have them look at the deeds to make sure they're working in coordination with what you want to happen through your estate plan.

So great question, thanks for tuning in and thank you for watching and we'll see you next time.

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