Charity A. McCarthy
Douglas C. Scriver
The number of couples deciding to remain unmarried is on the rise, and many of those couples make “life’s biggest investment” together – purchasing a home. Unmarried couples, however, are affected by property, probate, tax, and other laws differently than their married counterparts. Thus, it is important for those individuals to own their homes and agree with their significant others in a manner that accurately reflects both partners’ desires and expectations. An unmarried couple must answer the questions, among others, as to what happens to their home if (A) one (or both) of the partners dies, or (B) their relationship ends in a separation.
Unlike married couples in Wisconsin, those who are legally single cannot own their homes as “survivorship marital property.” Unmarried individuals must instead choose to own their shared property as either “joint tenants” or “tenants in common.”
A joint tenancy is similar to survivorship marital property. At the time of the first death between joint tenants, the deceased individual’s interest will be automatically transferred to the surviving joint tenant.
A tenancy in common, on the other hand, has no right of survivorship, and the interest of the first to die in the home will be passed as directed in his or her Will. Alternatively, if the first to die has no Will, his or her interest in the home will pass to his or her heirs (e.g., surviving children if any, if none, then surviving parents, if none, then siblings, etc.). Such heirs will then own the home with the surviving individual.
Whether to own a home as joint tenants or tenants in common is unique to every couple. For example, if an unmarried couple’s house is titled as a joint tenancy, the heirs of the first to die have no rights with respect to the property. Consequently, if the couple’s decision to remain unmarried is motivated, at least in part, by a desire to keep their assets separate and allow their assets (or the value of their assets) to pass to their children or other family members at death, then simply becoming joint tenants might be an imprudent course of action.
Even if a couple owns a home as joint tenants, so that the surviving party receives the deceased’s interest, this would not address how the deceased party’s interest in the personal property within the home would be dealt with at death (e.g., furnishings, appliances, etc.). If the deceased party did not have a Will leaving such personal property to the surviving party, the surviving party and the deceased party’s heirs would be left to sort out which personal property items now belong to the heirs and which personal property items remain with the surviving party.
To avoid the above issues, a couple should consider a co-habitation agreement which can outline how the couple wishes to deal with the house and personal property in the event of one of their deaths.
The following are a few items that a couple should consider addressing in a co-habitation agreement in the event of death:
For certain items that are agreed upon in the co-habitation agreement relating to death, care should be taken to coordinate the co-habitation agreement and any estate planning documents so they are consistent.
An unmarried couple who owns a home together will continue to own the home together if and after they break up. This can present a host of messy issues. A carefully crafted co-habitation agreement entered into by the couple while in a relationship can avoid many of these issues by addressing in advance how the home would be dealt with in the event of a break up.
The following are a few items that a couple should consider addressing in a co-habitation agreement in the event of a break up:
As illustrated above, unmarried couples face a myriad of issues when purchasing a home together, particularly in the event of death or separation. And like almost every transaction, how these issues are handled may also have tax implications. Accordingly, we recommend that couples seriously consider entering into a co-habitation agreement to address these issues and we recommend that they obtain the advice of experienced legal counsel when entering into such an agreement.
If you have any questions about how the information in this article may affect you, please contact Charity McCarthy at firstname.lastname@example.org or Doug Scriver at email@example.com or (608) 257-2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.