Cohabitation and Common Law Marriage under Wisconsin State Law

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.