A couple comes in to look at houses, they've been together five, six, eight years, they're ready to buy. They've talked about everything. Where they want to live, what they want to spend, whether the yard's big enough for the dog.What they almost never talk about is whose name goes on the title, what happens if one of them gets hit by a bus, what happens if they split up two years in.If they were married, Wisconsin law would fill in some of those answers automatically. They're not, so it doesn't.
This isn't a "go get married first" post. People have plenty of reasons for not being married and most of them are none of my business. But there's homework to do before you sign that most couples don't realize they need to do, and I'd rather you do it before closing than learn about it the hard way.
Wisconsin specifically does not have your back
Wisconsin is a marital property state. For married couples, that means assets get treated as shared by default, divorces have a framework for splitting things up, and when one spouse dies the other gets automatic protections.If you're not married, none of that applies to you. And Wisconsin hasn't recognized new common-law marriages since 1917, so the "we've been together long enough" argument doesn't fly here. You can share a bed and a mortgage for thirty years and the law will still treat the two of you as roommates who happen to be in love.Whatever protections you want, you have to have in writing.
The title and the mortgage are not the same thing
Most people I work with don't know this until I tell them, so it's worth spelling out.
The mortgage is who has to pay the bank. Both names on the loan, the bank can come after both of you. One name, only that person is on the hook.
The title (the deed) is who actually owns the house. You can be on the mortgage and not on the title. You can be on the title and not on the mortgage. They're separate questions with separate answers.
This matters because lenders sometimes suggest putting only one of you on the loan to get a better rate, usually because that person has the stronger credit. Sometimes that's the right call. But if your name's not on the loan and not on the title either, and you're still putting down money or paying half the mortgage every month, you're paying for someone else's house. Make sure you're at least on the title.
Three ways to take title, and they aren't the same
If both of you are on the deed, Wisconsin gives you a few options for how to hold it.The most common is joint tenancy with right of survivorship. Equal ownership, and when one of you dies the other gets the whole thing automatically. Skips probate, simple, clean. The catch is you can't will your half to anyone else, because the moment you die it isn't yours.
The other option that makes sense for a lot of unmarried couples is tenancy in common. Each of you owns a defined share, and the shares don't have to be equal. You could be 60/40 if one of you put in more. When one of you dies, that share passes through your will, not automatically to your partner. Better when contributions are uneven, but it only works if you actually have a will, which I'll get to.
There's also a version where one of you is on title alone. Sometimes that makes sense for tax or credit reasons. If you're the partner who isn't on title, you need everything in writing or you're a glorified tenant.Pick on purpose. Don't let the title company default you into joint tenancy because that's what they assume couples want.Say you and your partner buy a $425,000 east side duplex. You put $30K down, your partner puts $10K. You agree to split the mortgage 50/50 going forward. Three years later you sell for $475,000.If the deed says joint tenancy or 50/50 tenancy in common, the proceeds get split 50/50. You just lost $20K of the extra you put in.
This is what a co-ownership agreement solves. It's a contract between the two of you, drafted by a real estate attorney, that covers what a marriage license would cover automatically. Who put in what at closing. How ownership percentages get calculated. Who pays the mortgage, the taxes, the insurance, the new roof when it goes. What happens if one of you pays for an improvement and the other one doesn't. How a buyout works if someone wants out. Whether the partner staying gets first crack at buying the other one out before it hits the market.
Get this done before closing. The fee is a rounding error compared to what's at stake.
Two scenarios you don't want to think about
You don't want to think about them. Think about them anyway.
The breakup. If a married couple splits, a court divides things using rules that have been around forever. If you split and you're not married, you have whatever your contract says. If there's no contract, you have whatever a judge can untangle from receipts and Venmo records, while the house sits there losing value because nobody wants to maintain it during a fight. Pick a mechanism in writing. Buyout at appraised value, sell and split per ownership share, one party gets six months to refinance the other off. Doesn't matter which, just pick one.
The death. If your partner dies and you're not on title and not in their will, the house goes to their estate, and their family decides what happens to you. Sometimes that goes fine. Sometimes you're moving out of a house you've been paying for. So: title held the way you want it, a will for each of you, and beneficiary designations on life insurance and retirement accounts updated to match the new reality. Plan like the family won't help. If they do, no harm done.
A tax thing that bites people later
Married couples get a $500,000 capital gains exclusion when they sell their primary home. Unmarried partners each get their own $250,000 exclusion, but only on their share of the gain. Mortgage interest deductions can also get messy when only one of you is on the loan but you're both paying. An hour with a CPA before you close is worth it.
What you actually need
Short list. A real estate attorney to draft the co-ownership agreement. An estate attorney, often the same person, to draft the wills. A lender who has done unmarried co-borrower files before and isn't going to fumble the credit math. And a real estate agent who flags this conversation before you're under contract, not after.I'm the last one. The other three I can refer you to in Madison.
Bottom line
Buying a house together without being married is fine. People do it all the time and most of them are glad they did. Doing it without anything in writing is where it goes sideways.
If you and your partner are starting to look at homes around here and you haven't worked through any of this, do it before you write your first offer. Or call me and I'll walk you through it before we ever pull up a listing.
By: Akeem Harper
