Marital property is subject to a one half interest for each spouse in terms of the marital property. This means that each spouse has a one-half interest in every item of marital property, not that they have one half interest in the total aggregate of marital property.

In the case of one spouse’s death, the living spouse still maintains his or her one-half share of each item of marital property. In some cases, third party may succeed in becoming a tenant of commons along with the surviving spouse, which means that this party will also own one-half interest in each item of marital property.

types of marital properties in a pie graphDeferred marital property is one such instance where a third party may become a tenant of commons. Deferred marital property is a property which is acquired during the marriage, but before the effective date of January 1, 1986.

These properties must be those which would have been marital property if acquired after the effective date. In these cases, the surviving spouse becomes a tenant in commons to one-half the property, but another party may become a tenant in commons as well if stated in the deceased spouse’s will.

All property acquired during the marriage after 1986 is assumed to be marital property, and is subject to the community property system in which each spouse owns one-half of each item. The state of Wisconsin recognizes married partners as one economic entity, assuming that each spouse contributes equally to the household, whether in the form of monetary earnings, services rendered, or a combination of both. Items one spouse wishes to maintain as personal property rather than marital property must petition to have these items approved as such by the courts.

Property owned by one house from the beginning of the marriage, as well as any property inherited by or gifted to a single spouse are considered individual property. Any property owed prior to marriage that then becomes mixed with marital property becomes marital property. For instance, if one spouse has a bank or savings account prior to marriage, but the account is later shared by both spouses, which account would become marital property.

If you are still confused with issues related to marital property, please call me for more details.

Trisha Festerling, J.D.

Family Law Attorney

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