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In Wisconsin, unmarried partners are not legally recognized as next of kin. Without appropriate legal documents, unmarried couples lack important legal rights.
Under Wisconsin’s estate and inheritance laws, unmarried couples lack key legal rights that married couples have. An unmarried partner is not recognized as next of kin in emergency medical situations and is left out of the inheritance succession list for the other person’s property. Both of these gaps can be filled with proper estate planning.
Married partners have several legal rights that unmarried partners do not. However, proper estate planning can address several of those missing legal rights. For instance:
Wills and trusts can ensure unmarried partners inherit assets when one partner passes. Both wills and trusts distribute assets upon one’s death, but they do so in different ways.
Wills outline how assets should be distributed after your death, particularly through the probate process. They do not avoid probate on their own, which means they often become public record if filed as part of a probate administration. The assets are usually distributed outright, as a lump sum distribution. Wills also offer the opportunity to recommend a guardian for minor children. That may be particularly important in situations where one partner is not legally tied to the children despite being a parental figure.
Trusts are more private because they do not go through probate. They offer more flexibility and control in distributing assets. For instance, assets can easily be set up to be distributed over time, instead of having to be distributed all at once. They only control the assets given over to the trust, so it’s important to take the necessary step of having a pour-over will that grants any forgotten or additional assets to the trust.
Powers of attorney permit a specified individual to make medical and financial decisions in an emergency. Many emergencies rely on “next of kin” in the absence of a power of attorney. For unmarried partners, next of kin may be parents or siblings.
Imagine you are in an accident and unconscious in a hospital. Without powers of attorney, your partner cannot access your bank to pay the mortgage or talk to doctors about your care. Depending on hospital policy, they may not even be admitted to your room! Powers of attorney ensure your chosen person has the access they need, when they need it to manage your affairs in your stead.
A medical power of attorney (also known as a health care power of attorney) goes into effect when two doctors determine a person is incapacitated, or unable to make their own health care decisions or manage their own affairs. The person named as the “agent” is able to talk to your healthcare team, access your medical records, make decisions about surgeries, treatments, therapies, medications, and more.
A financial power of attorney allows your designated agent to access and manage bank accounts, pay bills, handle taxes, and other legal and financial tasks when you cannot. They have an obligation to act in your best interests. If there is no power of attorney set up when one is needed, your loved ones may need to go to court to gain access to manage your affairs.
If a couple is not married, the surviving partner does not automatically inherit real estate. Instead, the details of the title determine what happens to the property when one member of a long-term relationship dies. Proper planning will protect the surviving partner.
Joint Tenancy with Right of Survivorship: In this arrangement, each partner owns 50% of the property. When one partner dies, the other inherits the property without going through probate. This is a simple solution for unmarried couples, though trusts can offer the ability to have special instructions, more control, and some better protection from creditors.
Tenants in Common: Each partner can own a set share of the property, normally equal shares by default. When either partner passes, their share does not pass to the surviving partner. They may distribute their share to anyone they wish in their will or trust. Without a will or trust, it would go to probate and pass via intestate laws, likely to a child, parent, or sibling. The surviving partner now co-owns property with this new party. These agreements often need to be reinforced with a supplemental co-ownership agreement. They are also only used in specific situations as it causes complications if the surviving owner wants to continue to live in the residence.
Sole Ownership: If one person owns the property, the surviving partner has no right to inherit the home, even if they helped pay for it and lived there long-term. For them to inherit the property, there would have to be a will or trust that distributed that asset to them.
Some assets have beneficiary designations or transfer-on-death designations that bypass wills and trusts. This is most often relevant for life insurance policies, investment and retirement accounts, other bank accounts, and real estate. It’s important to have these updated to comply with and mirror your estate plan, because the instructions for asset distribution in your will or trust will not apply to these assets.
If these designations are not updated accordingly, it can cause issues if the beneficiary was an ex-spouse or especially if the beneficiary was an unmarried partner. A divorce nullifies beneficiary designations to the previous spouse, so that can be addressed later in court if needed. But if the couple is never married but separate and the designation was not updated, there is no law to nullify the designation.
When a person in Wisconsin dies without a will or trust, the estate typically goes into probate. Probate is a public and lengthy legal process. First, an executor is chosen by the court if there is no will. The executor keeps the heirs and beneficiaries updated, and sends notices to creditors. A detailed list of assets is filed with the court, debts are paid, and beneficiaries are determined by intestate succession laws.
In Wisconsin, if the deceased was not married, the order of succession is:
As you can see, unmarried partners are not on the list of succession according to the state of Wisconsin, which is why it is critical to engage in estate planning, so your wishes are honored.
