Using Marital Property Agreements in Wisconsin

Posted on Jun 19, 2024 by

In Wisconsin, a Marital Property Agreement can be a valuable tool for estate planning, particularly for transferring property without going through probate, the legal process of distributing a deceased person’s estate, which is often both time-consuming and costly.

Here’s how it works:

What is a Marital Property Agreement?

A Marital Property Agreement is a legal contract between spouses that outlines how assets and debts will be divided in the event of divorce, separation, or death.

Transferring Property Without Probate:

  1. Ownership Structure: In a Marital Property Agreement, spouses can specify how they own property during their marriage. Wisconsin is a community property state, which means that assets acquired during the marriage are generally considered joint property. However, spouses can agree to designate certain assets as separate property or specify different ownership arrangements.
  2. Transfer Upon Death without Probate: Through a Marital Property Agreement, spouses can agree to transfer assets directly to the surviving spouse, a trust, or their children upon death, bypassing the probate process.

Benefits of Using a Marital Property Agreement:

  • Probate Avoidance: By structuring ownership of assets appropriately, spouses can minimize or entirely avoid the probate process.
  • Alternative to Trust Planning: A well-drafted Marital Property Agreement can provide the non-probate transfer benefits of a Revocable Living Trust, without some of the complexity that a trust requires.

Downsides of Using a Marital Property Agreement:

  • Not as Customizable as a Trust: Clients with disabled, spendthrift, or irresponsible beneficiaries will not likely want to use a Marital Property Agreement as their sole estate planning tool as they generally do not provide as much control over an inherited asset as a trust.  A trust can dispense the inheritance over the course of time, hold shares back for disabled beneficiaries, or contain a variety of other custom provisions.  With only a Marital Property Agreement, the assets are transferred directly to your beneficiaries immediately upon death.

A Marital Property Agreement can be a powerful estate planning tool in Wisconsin, allowing married clients to transfer property without probate while also providing clarity and protection for their assets. However, it’s essential to consult with an experienced attorney to draft a comprehensive agreement that meets legal requirements and addresses your specific objectives and circumstances.

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Jon L. Fischer

Estate Planning and Elder Law Attorney at McCarty Law LLP
Jon focuses his practice on estate planning, probate matters, and Medicaid planning as he aims to help clients in their time of need.