Survivorship Marital Property
Definition:
Survivorship Marital Property is a unique classification under Wisconsin’s Marital Property Act, which governs property ownership between married couples. This form of ownership is only available to married spouses in Wisconsin and is specifically designated to pass the full interest of the property to the surviving spouse upon death.
Key Features:
- Eligibility: Only available to legally married couples.
- Ownership: Each spouse owns an undivided one-half interest in the property.
- Survivorship: Upon the death of one spouse, the deceased spouse’s interest automatically transfers to the surviving spouse outside of probate.
- Tax Benefits: At death, the entire property receives a full step-up in basis for capital gains purposes, which can result in significant tax savings if the surviving spouse sells the property.
- Presumption of Ownership: In Wisconsin, most property acquired during the marriage is presumed to be marital property, and couples can elect to make it survivorship marital property by titling it as such on the deed.
Joint Tenancy with Right of Survivorship
Definition:
Joint Tenancy is a form of co-ownership that can be held by two or more individuals, regardless of marital status. When property is held in joint tenancy, each owner has an equal interest in the property, and the right of survivorship ensures that when one owner dies, their share passes to the surviving joint tenant(s).
Key Features:
- Eligibility: Can be used by married or unmarried individuals, including family members, business partners, or friends.
- Ownership: Each joint tenant owns an equal share of the whole property.
- Survivorship: The deceased owner’s interest passes to the surviving joint tenant(s) automatically, bypassing probate.
- Tax Considerations: Upon death, only the deceased’s share receives a step-up in basis. This can create a higher capital gains tax burden compared to survivorship marital property.
- Creditor Implications: Creditors of one joint tenant can potentially force a sale of the property to satisfy debts.
Key Differences at a Glance
| Feature | Survivorship Marital Property | Joint Tenancy with Right of Survivorship |
| Who Can Use It? | Married couples only | Anyone (married or unmarried) |
| Probate Avoidance | Yes | Yes |
| Ownership Interest | Equal 50/50 between spouses | Equal between all joint tenants |
| Step-Up in Basis at Death | Full (100%) | Partial (only decedent’s share) |
| Creditor Protection | Stronger protection in some cases | Weaker; subject to individual creditor claims |
| Tax Efficiency | Generally more tax-efficient | May result in higher capital gains taxes |
Which Is Right for You?
Choosing the right form of property ownership depends on your individual situation:
- Married couples who want a streamlined transfer of property and maximum tax benefits usually prefer Survivorship Marital Property.
- Unmarried individuals or business partners may opt for Joint Tenancy to ensure the surviving party retains full ownership without going through probate.
It’s always advisable to consult a real estate attorney or estate planning professional to determine which ownership form best suits your needs, particularly when considering long-term financial and inheritance implications.
Conclusion
In Wisconsin, both Survivorship Marital Property and Joint Tenancy offer a way to avoid probate and simplify the transfer of property after death. However, their differences—especially in terms of eligibility, tax consequences, and legal implications—make it essential to choose carefully. Understanding how each option works can help you protect your assets, reduce legal complexity, and provide peace of mind for your loved ones.
Please note: Any opinions discussed in this article belong solely to the author, Marissa Berends, and do not necessarily reflect the views of Capitol Lien.
About the Author
Marissa Berends is a Certified Abstractor and Industry Relations Coordinator at Capitol Lien, a nationwide due diligence and risk mitigation services provider. Since joining the company in September 2021, she has earned abstractor certifications in Minnesota, Nebraska, and North Dakota. She is pursuing her Wisconsin Title Examiner certification, which is expected to be completed in Fall 2025.
Marissa is involved with the following groups: Wisconsin Land Title Association’s (WLTA) Convention Committee & Young Title Professionals; Nebraska Land Title Association’s (NLTA) Convention Committee; Property Record Industry Association (PRIA) National Education Committee; Illinois Land Title Association’s (ILTA) Inclusion, Diversity, Equity & Acceptance (IDEA) Committee; and the National Association of Land Title Examiners and Abstractors (NALTEA).
About Capitol Lien
Capitol Lien empowers real estate and title professionals with trusted public record research and due diligence services nationwide. With 35 years of experience, Capitol Lien specializes in fast, accurate property and title searches, lien reports, and document retrieval that help title agents, underwriters, and legal teams operate their businesses with confidence. The Capitol Lien team takes the hassle out of title research with local experts and innovative tools that make it easier to mitigate risk, stay on schedule, and keep your closings moving smoothly.
Learn more at capitollien.com. Ready to simplify your title research? Send your next order to Capitol Lien and experience the difference trusted diligence makes. Stay in touch with Capitol Lien on LinkedIn for industry updates and information. Reach out! contact@capitollien.com or 800-845-4077