A deed with a small house on it

There are several ways to hold title to real estate property in Wisconsin. This article deals primarily with “fee simple absolute,” title in which ownership is forever, and the owner has full rights to the property subject only to government powers. Other forms of ownership exist, including where the owner can only use the property in specific ways, where ownership passes upon death, and where ownership transfers from landlord to tenant. In addition, ownership can take the form of condominium, cooperative, or time-share ownership.

Fee simple absolute ownership can be further classified into marital property tenants in common, joint tenants, or, if spouses, as marital property.

Marital Property

When married couples acquire properties after their marriage date, the ownership is, by default, marital property. With martial property, each spouse owns an undivided one-half interest in the other spouse’s property, regardless of which spouse acquired the property.

What happens to the property when one spouse dies and whether both spouses must sign a deed to sell a marital property depends on whether the property is homestead property. Homestead status applies to residential property where both spouses live together as well as a residence where one spouse lives alone. For example, if one spouse lives in the couple’s Milwaukee home while the other spouse lives in their Madison home while working there during the week, each property is arguably deemed the couple’s homestead.

While only one spouse’s signature is required to sell a non-homestead marital property, the sale of homestead property requires the signature of both spouses. And, unless an agreement exists otherwise, when one spouse dies, ownership of the property passes differently between the two types of property. With homestead property, ownership passes to the surviving spouse, whereas with non-homestead property, ownership may be distributed according to the deceased spouse’s will.

Individual Property

A spouse may also own property individually under certain situations. For instance, if a spouse acquired property before marriage, if a court decree declares a property as individual property, or if a marital property agreement declares a property to be individual property.

Tenants In Common

Tenants in common are two or more owners who may own percentages of the property as specified on the deed. Any co-owner may transfer their interest in the property to another individual. Upon a co-owner’s death, their interest in the property passes to the heirs or beneficiaries of that co-owner, while the remaining co-owners retain their same ownership percentages. Transferring property upon the death of a co-tenant requires a probate proceeding.

Joint Tenants

Joint tenants are two or more owners who must own equal property shares. Upon a co-owner’s death, the decedent’s share of the property transfers to the surviving joint tenants, not their heirs or beneficiaries. Transferring property upon the death of a joint tenant does not require a probate proceeding but will require certain forms to be filed and the recording of a new deed.

Final Thoughts

How you hold title has lasting ramifications on you, your family, and any co-owners of your property. Title transfers can affect property taxes, capital gains taxes, and estate taxes. If the property isn’t titled in a way to avoid probate, your heirs will be subject to a lengthy, costly, and very public probate court proceeding. By consulting an experienced real estate attorney, you can ensure your rights – and those of your loved ones – are fully protected.

Note: This article is strictly informational, and the author does not intend to provide legal advice. In addition, this information may be incomplete or out of date. For advice on current real estate law and how it applies to your situation, please consult with an attorney.

By the Power of Homestead, WRA