Wisconsin Survivorship Property Laws | Sterling Law Office, S.C. (2024)

What happens to marital property after the death of a spouse?

The answer depends on whether or not you live in a community property state. In community property states, property and assets acquired during the marriage belong to both spouses equally. In the event of a divorce, marital property is split 50/50 between the two parties. Community property with the right of survivorship exists only for couples who are married or in a registered domestic partnership. Upon death, community property states distribute assets in a unique way.

In community property states like Wisconsin, married couples are allowed to have property as survivorship marital property or community property with right of survivorship[1]. What this means is, if one spouse passes away the remaining spouse is to receive the dead spouse's' half of the marital property. Spouses are not able to pass community on to anyone other than their spouse, even if it is written into a will.

An example of property that would this is a house with both parties names on the title. This would go directly to the surviving party. This does not include separate property. Separate property is any property or assets owned before the marriage, property or assets given to a spouse as a gift from a third party, or property or assets inherited by one spouse.

Property held as community property with right of survivorship has tax advantages since it is not subject to capital gains tax when sold.

In the case ofRoeder v. Roeder, 103 Wis.2d 411, 308 N.W. 2d 904 (Ct. App. 1981)[2], even if someone dies before the completion of evidence relating to the division of marital property, the trial court should not speed up the process and order a final property division; the trial court must wait for the completion of evidence in order for the beneficiaries to receive their just rewards regarding theproperty division.