By: Neil L. Wojtal
Recently a person (I will refer to her as Ann although that
is not her real name) came to our firm with the following fact situation:
Ann had been living with her partner (I will call him Joe
although that is not his real name) for many years. Joe was now living in a
nursing home with questionable mental capacity to make his own decisions. His
adult daughter from his marriage was named in a fully executed Power of
Attorney for Health Care as his Agent. Therefore, the daughter was making all
of the health care decisions for Joe and she was also making decisions
concerning his property although it is unclear in what capacity.
The daughter told Ann that she needed to vacate Joe’s house
since Ann was not named in the deed as an owner and she had no right to
continue to live in the house. She was also told to remove all of her property
from the house. Ann asked us what she could do.
The above fact situation is not uncommon. Given reported
statistics that nearly one half of U. S. marriages end in divorce, many people
are opting to cohabitate rather than getting officially married. As a result,
it is important for anyone living in cohabitation in Wisconsin to understand
their status as a cohabitant under Wisconsin state law.
1. First, common law marriage does not exist in Wisconsin.
Common law marriage was abolished in the state of Wisconsin in 1917. Therefore,
anyone cohabiting who thinks they have any rights under common law marriage is
mistaken. No matter how long you may live with a person in Wisconsin, without a
marriage certificate you have no rights concerning each other’s property.
2. Wisconsin is a community property state when it comes to division
of property acquired during a legitimate marriage. The community property laws
do not apply to any cohabiting couple. As a result, the cohabiting couple’s
property can only be divided by contract. None of the divorce or family law
provisions under the Wisconsin state laws would apply to the division of the cohabitants’
property. For example, if both cohabitants are not named on the deed to the
home where they live, the person named on the deed has sole possession of all rights
to the property. The cohabitant has no right to the home or to live there.
3. No survivorship benefits would be available to the
surviving cohabitant in the event of the death of the other cohabitant. A
spouse or ex-spouse may be entitled to the benefits but not a cohabitant. For
example, the Social Security Administration only recognizes the survivorship
rights of a spouse or ex-spouse.
4. Any children born during the cohabitation will have
rights regarding paternity and support if the cohabitants acknowledge the child
as theirs. However, the cohabitants do not have any rights related to the
maintenance rules since the divorce laws do not apply to the dissolution of
their relationship. If the couple has no children, maintenance of either
cohabitant is not available under Wisconsin law.
Note that these examples are not exhaustive. There are many
other rights that can be affected in the event the cohabitants are not legally
married in Wisconsin.
Based upon the examples given above, it is important that
anyone living in cohabitation protect themselves and their children through
written documentation which recognizes the cohabitants’ interest in each
other’s property.
This can be done through wills, trusts and Powers of
Attorney for Health Care and Finance and Property. If a cohabitant has a will
drafted before the cohabitation, the will must be reviewed and updated to
reflect the current wishes of the cohabitant. For example, if children were
born during the cohabitation, they need to be named in the will to receive an
interest in the estate equal to any children born during a previous marriage if
that is the cohabitant’s wish.
All Beneficiaries of insurance policies, any survivorship
benefits related to pensions, all trust documents and all Powers of Attorney
for Health Care and Property and Finance must be reviewed to determine if the
cohabitant wants any changes based upon the cohabitation.
In summary, it is important to remember that in Wisconsin a
cohabitant has no marital rights and therefore any provision for the surviving
cohabitant after the other cohabitant’s death or incapacity must be
memorialized in a legal document or the surviving cohabitant will have no legal
rights under Wisconsin state law.
The information
contained in this document is intended for the sole purpose of providing
general legal information and is not intended as legal advice of any kind. This
information may not apply to your specific issue, therefore, do not act upon
this information without consulting Zimmerman & Steber Legal Group, S. C.
or another qualified attorney.
