Community Property FAQ’s

Why is it important for couples to understand what community property is, and the legalities surrounding it?

If couples are knowledgeable about community property, then they can position themselves to take advantage of its various benefits and they can take steps to avoid losing those benefits if they decide to move to a state where there is no community property. But not only is knowledge about community property laws important to couples; that knowledge is of significant importance to professionals, such as financial planners, insurance agents, lawyers and accountants, where the lack of competency could subject the professional adviser to a claim.

What is community property, specifically in Wisconsin?

Generally, community property is defined as a type of ownership between a husband and wife in which each spouse owns an undivided one-half interest in each item of property acquired during marriage, except property that is acquired by gift, devise, descent or personal injury. Title is not determinative: placing the property in the name of one spouse does not overcome the presumption that property acquired during the marriage is community property. Property acquired out of earnings during the marriage is presumed to be community property, as well.

For Wisconsin, community property is referred to as "marital property" and is codified in Wisconsin Statutes chapter 766. Effective January 1, 1986, Wisconsin became the 9th state to make community property the core law for property ownership and control in marriage. All nine states' community property laws differ in some respects, but in all cases title no longer controls ownership.

What are the differences in community property between Minnesota and Wisconsin?

While Wisconsin is a community property governed state, years ago Minnesota decided not to convert from common law property to community property. Thus, in Minnesota, title does denote ownership. But even in most common law states, such as Minnesota, spouses that do not have title to property still have some "ownership rights" which come into play with vigor at time of divorce. In addition, surviving spouses in common law states usually have rights that protect them upon the death of a spouse who held title. These rights include rights to spousal maintenance, homestead rights, and (depending on the length of the marriage and the absence of a prenuptial agreement), elective share rights.

On the other hand, in Wisconsin, a surviving spouse already owns one-half of marital property even if the marital property is held just in the name of the other spouse. Accordingly, surviving spouses in Wisconsin are not granted elective share rights, because again, the surviving spouse already owns half.

What are a few problem areas with community property that are important to note?

In the presentations that I have made to members of the Minnesota Bar, I have referenced a number of "Watch Out for This" scenarios. I will describe two of them now.

First, when a business owner moves to a community property state, such as Wisconsin, even if the shares of stock are titled in the name of that business owner, if income is reinvested into that business under circumstances where Wisconsin marital property law applies, then the business owner's spouse will own one-half of the business owner's shares. If then the business owner's spouse dies and leaves his or her estate to his or her children of a prior marriage, the business owner will need to buy those shares back in order to keep those shares from passing to those children.

Another problem area arises when a couple moves to a community property state and fails to change the title of a highly appreciated asset from the former ownership to a new account that can be classified as community property. In such a case, the missed opportunity of qualifying for the tax-advantaged double step-up in basis could be lost. Not only would the couple be disappointed, but if a professional planner missed this, that professional advisor could be sued.

What are a few considerations for preserving the community property nature of assets brought into a common law state?

One of the areas of focus of my professional practice has been to guide couples and their attorneys when a couple moves from Wisconsin to Minnesota. I have been licensed to practice law in Minnesota since 1982 and in Wisconsin since 1989.

As a voluntary service to my profession, I co-authored legislation to create a set of rules that apply when a couple with community property moves to Minnesota. That legislation is referred to as the Uniform Disposition of Community Property Rights at Death Act and is codified in Minn. Stat. Section 519A.11. This law became effective in 2013. It provides some helpful presumptions concerning community property brought into Minnesota. It gives Minnesota courts a set of standards to help those courts more uniformly determine whether community property rights have been preserve or lost.

So what is so important about preserving community property? Let me provide an example. Let's assume that a couple moves to Minnesota from Wisconsin. While living in Wisconsin, one of them invested $50,000 of his or her earnings in a start-up company and as a consequence, that $50,000 has grown in value to $1,000,000 when the company went public. If the couple preserved the community property ownership properly, then upon the death of EITHER spouse, the shares get a step-up in income tax basis to the full current value of $1,000,000. That would allow the surviving spouse to sell those shares without having to pay any capital gains tax, and this would also allow the surviving spouse to reinvest 100% of the proceeds into a more diversified portfolio.

On the other hand, if the couple upon moving to Minnesota placed those shares into a jointly owned account with right of survivorship, that would destroy the community property nature of the shares. Then only one-half of the shares would receive a step-up in income tax basis. Capital gains tax would be taxable on the other half.

What is the best way for someone to understand their own situation in regards to community property and keep their assets protected?

A couple who is residing in a community property state, or is about to move from a community property state to a common law state, or is about to move to a community property state from a common law state, would be well-advised to meet with a professional adviser who is competent in community property law. We, at Sjoberg & Tebelius, are able to provide competent estate and business planning advice that involves community property law issues. Whether a fellow lawyer or a new client, we hope you will contact us to discuss your circumstances.