Probate

Marital Property

Marital Property includes all the income and possessions of a married couple. Each spouse owns them equally. Certain items may have only one spouse's name on the title That isn't proof that only the named spouse owns the item, but it does generally give that spouse the right to manage and control the item. He or she has a duty to treat the unnamed spouse fairly.

In 1986, the Wisconsin Uniform Marital Property Act was enacted to reflect the belief that what a couple acquires during their marriages belongs to both of them equally. The law recognizes that each spouse makes equally important contributions to the success of the marriage. These contributions are acknowledged through equal ownership of any assets they acquire.

All property is presumed to be marital property unless you can show that it should be classified in some other way. Other classifications include:

  • Individual property, generally, property one spouse owned before getting married.
  • Gifts or inheritances, no matter when they were received.
  • Deferred marital property - anything tat would have been classified as marital property except for the fact that it was acquired before January 1, 1986, when the Marital Property Reform Act took effect.
  • Survivorship Marital Property - property that goes directly to the surviving spouse upon the death of the other. It is not subject to the probate process.

One of the primary purposes of the Marital Property Reform Act regarded the ability of the spouse earning less income to have an easier time of obtaining credit. To determine whether one spouse qualifies for credit, a creditor must consider all marital property, including the income of the other spouse.

Future income is the marital asset most often used to qualify for credit. Any income earned after a marriage ends, whether by divorce or death, is not marital property. A creditor can only go after the marital property or income of a spouse who signed for the credit. Many creditors will want to protect their interests by asking both spouses to sign. This enables the creditor to go after the income of either spouse if the marriage ends.

If you do not have a will, all of your estate will go to your surviving spouse, unless there are children from a prior marriage, in which case half of your estate will be split equally among all of your children and the other half will go to your spouse.

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Marital Property Reclassification

If individual property is mixed with marital property, the individual property may be reclassified as marital property. If you wish to preserve individual property, you must keep detailed records that will allow the individual property to be traced. See Marital Property Agreement.

Effects of Marital Property on your Will

The law may change the effect of your will. Your estate will include all of your individual property plus half of all marital property, regardless of title. Depending upon the wording of your will, you could pass your half interest in property that is titled in your spouse's name to someone else, thereby creating a type of co-ownership. So old wills should be reviewed in light of the marital property law as well as other changing laws.

For more information about Attorney Stephen P. Johnson and how he can help you, please call (920) 743-2129 or visit his profile.

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