Property Title: More Than Just a Name on a Deed. Who Gets a Piece of the Pie?

06.03.2026

Author:  Attorney Harold J. Gatto

How a property is titled affects the rights of the owners both during life and after a death. This article is a concise introduction to Wisconsin real estate classification and how it affects the rights of the owners.

In Wisconsin, if a deed does not specify how two co-owners hold a particular piece of real estate (for example, the deed says, “Mary Shelley and Franz Kafka,” with no clarification), the default presumption is that it is held between them as tenants in common under Wisconsin Statute Sec. 700.17(3). Tenants in common hold undivided interests in the property that can be freely transferred, and that last for the duration of their ownership. A tenancy in common has no right of survivorship. In other words, when a tenant in common passes away, their share does not pass to the surviving co-owner but instead passes according to the deceased tenant’s estate (if they passed without a will, it would follow Wisconsin’s default intestacy rules, or if they made an estate plan, it would pass to the beneficiaries that they specified).

A tenancy in common does not need to be owned equally by all co-owners. The default is equal ownership if a deed does not clarify, but a deed can state otherwise. For example, a deed might be titled “Mary Shelley, Franz Kafka, and F. Scott Fitzgerald, tenants in common” and specify that Mary holds a 20% share and Franz and F. Scott hold a 40% share each.

However, property that is held by joint tenants, unlike tenancies in common, has a right of survivorship. When a joint tenant passes away, the real estate passes to the surviving joint tenants, not according to the deceased owner’s estate plan. When a joint tenant passes away and a lien (such as a mortgage) is on the property in question, the right of survivorship persists, but the surviving joint tenant or tenants take the interest subject to any liens. A joint tenancy is created by using certain key phrases that by default express intent to create a joint tenancy: “as joint tenants,” “as joint owners,” “jointly,” “or the survivor,” and “with right of survivorship.” Furthermore, if persons named as owners in a document of title are described as husband and wife or are in fact husband and wife, they are presumed to be joint tenants as long as there is not a specified intent to create a tenancy in common.

Under Wisconsin law, property owned by spouses is presumed to be marital property; held where each spouse owns 50%, with some exceptions. See Attorney Adam Sorrentino’s article on this topic for more information: /blogs/wisconsin-is-a-community-property-or-marital-property-state/ . Marital property is more akin to tenancy in common, whereas survivorship marital property, a special classification exclusively for spouses, is more akin to joint tenancy.

Finally, spouses in Wisconsin have the ability to title their property with a special classification known as survivorship marital property. Classification as survivorship marital property operates similarly to joint tenancy, where there is a right of survivorship, and when the first spouse passes away, the surviving spouse receives the full interest in the property. Marital property and survivorship marital property have special rights and obligations as detailed in Chapter 766 of the Wisconsin Statutes ad may be eligible for favorable tax treatment upon the death of a spouse.

While this overview can help individuals seeking to navigate the maze of Wisconsin property classifications, you should consult with an estate planning and real estate attorney to ensure that property is classified in an appropriate way. There are a number of exceptions and nuances to these statutes and provisions beyond the scope of this article, so The Wisconsin Statutes allow for flexibility in how property is titled, but each classification is very circumstance-dependent, and there are a number of exceptions and nuances to these rules beyond the scope of this article: coordination with the appropriate professionals is essential to confirm that other aspects of your plans for a particular piece of real estate are properly aligned to avoid complications.