Wisconsin Marital Property & Joint Tenancy Rules

"Marital property" and "survivorship marital property" sound almost identical on a deed — and lead to completely different outcomes at death.

Community property, under a different name

Wisconsin's Marital Property Act, created by 1983 Wis. Act 186 and amended in 1985, took effect under a "determination date" of January 1, 1986. The law is explicit about its purpose: it's the legislature's intent that marital property be a form of community property. Property either spouse acquires during the marriage is generally owned equally as marital property — but ordinary marital property, titled just as "marital property," still requires probate for the deceased spouse's half. A third party who succeeds to that half becomes a tenant in common with the survivor, not an outright new co-owner.

The one word that avoids probate

Under Wis. Stat. § 766.60, using the phrase "survivorship marital property" instead of plain "marital property" in the title changes the outcome completely. When a spouse dies, their ownership rights in property held this way vest solely in the surviving spouse by nontestamentary disposition — automatically, without probate. The first spouse to die can't dispose of any interest in survivorship marital property through their will, even if they try; the survivorship terms control regardless.

Post-1986 spousal joint tenancy converts automatically

Married couples don't have to use the exact phrase "survivorship marital property" to get this treatment. If a document of title expresses an intent to create a joint tenancy exclusively between spouses after the 1986 determination date, Wisconsin law treats the resulting property as survivorship marital property by default — not as an ordinary joint tenancy. The reverse is also true: a tenancy in common created exclusively between spouses after that date becomes ordinary marital property instead, unless a marital property agreement says otherwise.

A mortgage doesn't defeat the survivor's right

Creditors reaching a deceased spouse's share don't automatically undo survivorship marital property. A real estate mortgage, a security interest, or certain statutory liens against a deceased spouse's interest in survivorship marital property don't defeat the surviving spouse's right of survivorship — the survivor simply takes the interest subject to that existing mortgage or lien, rather than losing the survivorship outright.

Non-spousal joint tenancy: the usual express-language rule

For co-owners who aren't married to each other, § 700.19 requires a document that expresses an intent to create a joint tenancy. Wisconsin accepts a fairly wide range of phrasing for this — "as joint tenants," "as joint owners," "jointly," "or the survivor," "with right of survivorship," or any similar phrase — with one specific exception: a phrase similar to "survivorship marital property" doesn't create an ordinary joint tenancy, because that phrasing is reserved for the marital property regime.

A newer tool, added right to the title

None of these co-ownership forms are the only way to keep Wisconsin real estate out of probate. See our guide to the Wisconsin TOD designation for a tool that works by adding a beneficiary directly to the existing title, rather than requiring a whole new co-ownership form.

Wisconsin marital property & joint tenancy — frequently asked questions

When was Wisconsin's Marital Property Act enacted?

It was created by 1983 Wis. Act 186, with amendments in 1985, and became effective under a determination date of January 1, 1986. The law states that the legislature intends marital property to be a form of community property.

Does a spouse who dies first control what happens to survivorship marital property?

No. Once property is titled as survivorship marital property, the first spouse to die cannot dispose of any interest in it by will — ownership vests solely in the surviving spouse automatically, regardless of what the deceased spouse's will says.

What happens if spouses hold property as joint tenants after 1986?

If a document of title expresses an intent to create a joint tenancy exclusively between spouses after the determination date, the property becomes survivorship marital property by default rather than an ordinary joint tenancy.

Does a mortgage on survivorship marital property defeat the surviving spouse's right?

No. A mortgage, security interest, or certain liens on a deceased spouse's interest in survivorship marital property do not defeat the right of survivorship — the surviving spouse takes the interest subject to that mortgage or lien, but still receives it.

What phrases create an ordinary joint tenancy for non-spouses in Wisconsin?

Phrases including "as joint tenants," "as joint owners," "jointly," "or the survivor," "with right of survivorship," or any similar phrase — except a phrase similar to "survivorship marital property," which is reserved for the marital property regime instead.

This page provides general guidance only and is not legal advice. Figures and rules are based on Wisconsin statute (Wis. Stat. § 766.60, § 700.19), verified per our methodology. Confirm how a specific asset is actually titled with the county Register of Deeds or a licensed Wisconsin attorney before acting.