Title to Real Estate: Unmarried Cohabitants
There are circumstances where unmarried persons purchase homes together. In most of those cases, the couples take title as joint tenants, which means that upon the death of one of them, title is automatically vested by operation of law in the survivor. On the other hand, if the unmarried couples take title as tenants in common, it is almost always on a 50-50 basis.
The problems arise when the relationship ends. The question that we are often asked is: Are there common law rights for unmarried cohabitants?
In Wisconsin, the answer is definitely, “no.” Wisconsin Law does not recognize common law marriage. The statutes that govern division of property between married persons in divorce, do not apply to actions between unmarried cohabitants.
The seminal case in Wisconsin, addressing the legal or equitable rights of partners when their cohabitation ends, is the case of Watts v. Watts. In the event that the cohabitating couple are a same-sex couple, they can register with the State Domestic Partnership Registry. In addition, a Cohabitation Agreement could be drafted to identify and outline the rights of both partners, if the relationship comes to an end. The issue of the legal rights of unmarried cohabitants is currently one area of the law that will develop over time, and courts will be addressing the equities involved in cohabitation cases. The more evidence and documents indicating a “joint enterprise” of two unmarried partners, the more likely a court will find that the assets were accumulated under an equal sharing arrangement – when the relationship ends.
The question that some of our clients still ask us is: What about cases where the assets accumulated were not on an equal sharing (50-50) arrangement?
Beware, is the answer.
There are significant risks to unmarried people who buy a house together. If the relationship dissolves, they are left with asking a court to order a sale of the house and the disposition of the proceeds according to their respective interests in title – which is almost 50-50. One way that this can be anticipated and avoided, is to engage legal counsel to prepare a joint owner’s agreement when purchasing real estate or changing title to real estate. Failure to plan before taking title can have significant adverse legal consequences. Unmarried cohabitants should not take title to real estate without the assistance of experienced real estate attorneys.
The attorneys at Clair Law Offices would be happy to answer any questions you may have regarding planning options for unmarried cohabitants taking title to real estate.