Marital Property – Does Your Will Really Mean What it Says?

Date: May 17, 2013 Category: Trusts and Estates

Wisconsin is the only state with a marital property law.  Generally, the law in Wisconsin presumes that you and your spouse own everything as marital property.  If that presumption is true, each spouse owns 50% of each item of property, and each spouse may transfer his/her 50% interest in each item to anyone else at death.  This can have a big impact on your estate plan.

If the presumption about marital property being owned 50/50 is true, then when Alan says in his will “I give my fishing cabin to my Cousin Claude”, what he is really saying is “I give my one-half interest in a fishing cabin to my Cousin Claude, because my wife, Barb, who doesn’t like Claude and hates to fish will continue to own the other half.”  Claude and Barb are likely set up for a battle about what to do with the cabin.

There are also some big exceptions to the 50/50 presumption.  For example, if Alan and Barb own their cabin is as “survivorship marital property”, then at Alan’s death, Barb owns 100% of the cabin, even if in his will Alan says his 50% interest should be given to his Cousin Claude.

Marital property classification and how it applies to Alan, Barb, you, and even Cousin Claude, is very specific to your family situation and each item of property.  It’s worth a call to an attorney to figure it out before Claude and Barb are wrestling over the keys to the cabin or hiring attorneys to figure out what your will really means because of how the marital property law applies.  A simple conversation, deed to change a marital property classification, or a marital property agreement may save a lot of pain.

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