Living together in Wisconsin, however long, does not give you the legal rights of a married couple. Wisconsin does not recognize common law marriages formed here, its marital property rules apply only to spouses, and Wisconsin stopped registering new domestic partnerships in 2018. Unmarried partners get protection mainly from how property is titled and from documents they sign: a cohabitation agreement, a will, powers of attorney and beneficiary designations.
This guide covers the rights unmarried couples have and do not have in Wisconsin: marriage and domestic partnership, what happens to a shared home, accounts and other property after a breakup, the agreements that protect you, estate planning, children, and support. For more on marriage recognition, see our guide to common law marriage in Wisconsin.
What Legal Rights Do Unmarried Couples Have in Wisconsin?
Far fewer than most couples assume. Married spouses in Wisconsin have automatic rights under the marital property laws, inheritance rights if a spouse dies without a will, the ability to make many decisions for an incapacitated spouse, and a court process to divide property and set maintenance when the marriage ends. Unmarried partners get none of these automatically, however long they have been together, however they present themselves, and however mixed their finances are.
Does Living Together Create a Common Law Marriage?
No. Wisconsin does not recognize common law marriages formed in Wisconsin. A marriage here requires a marriage license. Wisconsin may recognize a common law marriage that was validly formed in another state that allows it, but proving one takes evidence and often litigation. If you think you have an out-of-state common law marriage, talk to a Wisconsin family law attorney before relying on it.
The lack of automatic protection does not leave you helpless. It means you have to create the protections you want on purpose.
Domestic Partnership in Wisconsin
Wisconsin had a statewide domestic partnership registry, but it is closed to new couples.
What Was Wisconsin’s Domestic Partnership Registry?
In 2009, Wisconsin created a legal status called domestic partnership in Chapter 770 of the Wisconsin Statutes. It was limited to same-sex couples, who could not marry in Wisconsin at the time. Couples applied to the county clerk, signed a declaration before a notary, and recorded it with the register of deeds. The status carried a limited set of legal rights, well short of the rights of marriage.
Can You Still Register a Domestic Partnership in Wisconsin?
No. Once same-sex couples could marry, the legislature closed the registry as part of the 2017-2019 state budget (2017 Wisconsin Act 59). County clerks may not issue a declaration of domestic partnership to anyone who applied after April 1, 2018.
What Happens to Existing Domestic Partnerships?
Partnerships registered before the deadline were not automatically ended by the 2018 change. An existing domestic partnership ends in one of two ways:
- By filing a termination: either partner files a notarized notice of termination with the county clerk that issued the declaration and pays the fee, then records the certificate of termination with the register of deeds. The termination takes effect 90 days after the certificate is recorded.
- By marriage: if either partner enters a marriage that is valid in Wisconsin, the domestic partnership ends automatically on the date of the marriage.
If you are still in a registered partnership, check whether it is still in effect and how it interacts with your estate plan and any later marriage.
What About State Employee Domestic Partner Benefits?
The state employee benefit programs run by the Department of Employee Trust Funds had a separate domestic partner definition. The same 2017 budget act stopped new domestic partnerships under those programs as of September 23, 2017, and changed benefits for existing ones. Private employers set their own policies on partner benefits, so ask your employer’s plan administrator.
What Are the Options Now?
Couples who want the full legal protections of marriage, including marital property rights and a divorce court to divide property, can marry. Couples who choose not to marry rely on the agreements and documents described below.
What Happens to Shared Property When Unmarried Partners Split Up?
For unmarried partners, property generally belongs to whoever holds title or can prove they own it. Wisconsin’s marital property rules, which treat most property acquired during a marriage as belonging to both spouses, do not apply, and there is no divorce-style court process to divide what you built together.
The Shared Home
If both of you are on the deed, each of you has an ownership interest. As joint tenants, you own the home together and the survivor takes the whole property if one of you dies. As tenants in common, you can own unequal shares, and each share passes under the owner’s will or to their heirs. If you cannot agree what to do with a jointly owned home after a breakup, one of you can buy out the other, you can sell and split the proceeds, or either of you can ask a court for partition, which can end in a court-ordered sale.
If only one of you is on the deed, the other has no automatic ownership, even after years of paying half the mortgage or paying for renovations. Their options are the legal claims described below. If you are buying a home together, decide how to title it before closing, and consider stating each person’s share in writing.
Bank Accounts
Either holder of a joint account can usually withdraw from it, and banks generally let them do so even after a breakup. Unlike a divorce, there is no automatic court order during a breakup that stops one partner from emptying a joint account. If money is taken, getting it back may require a lawsuit, so keep records of what each of you deposited. If you expect a separation, talk to an attorney before either of you moves money.
Vehicles and Personal Property
Vehicles follow the title. Furniture, electronics and other untitled property usually go to whoever can show they paid for it, so receipts and bank or card statements matter.
Retirement Accounts
Retirement accounts belong to the account holder. The court orders used to divide retirement accounts in a divorce are not available to unmarried partners. If you want your partner to receive your retirement savings at your death, you must name them as beneficiary. See how retirement accounts are divided in a divorce for the contrast.
Shared Debts
Creditors are not bound by any agreement between former partners. If your name is on a joint credit card, loan or lease, you remain responsible for it after the breakup, whatever the two of you agreed about who would pay.
What Claims Does a Partner Have Without a Written Agreement?
In Watts v. Watts (1987), the Wisconsin Supreme Court held that the divorce property division statute does not apply to unmarried couples, but that an unmarried partner can still bring ordinary legal claims when a relationship ends:
- Breach of contract: based on an express agreement, or an implied agreement shown by how the two of you acted.
- Unjust enrichment: one partner kept a benefit the other provided, knowing the other expected to share, in circumstances where keeping it all would be unfair. A court may impose a constructive trust on property as the remedy.
- Partition: dividing property the two of you own together.
These claims have to be proved with evidence, are fact-specific, and are never guaranteed. Oral agreements are especially hard to prove. A written agreement, clear titling and good records are far cheaper than a lawsuit.
How Do You Protect Yourself When Living Together Without Marriage?
A Cohabitation Agreement
A cohabitation agreement is a written contract between unmarried partners. It can cover who owns the home and other major assets, how you share expenses and joint purchases, who is responsible for which debts, what happens to shared property if you separate or one of you dies, and whether either of you will pay the other anything after a long relationship ends. It works for unmarried partners much as a prenuptial agreement does for couples who plan to marry.
Put it in writing, sign it voluntarily, exchange honest information about your finances, and have each partner review it with their own lawyer. Keep the agreement focused on property and money. The best time to sign one is before you buy property together or combine finances, not after a dispute starts.
Title and Records
Put both names on the deed if you intend to share ownership, and say whether you hold it as joint tenants or tenants in common and in what shares. Keep bank statements, receipts and payment records that show what each of you contributed to shared property.
Estate Planning
Wisconsin’s rules for who inherits when someone dies without a will do not include an unmarried partner. Without planning, your property can pass to relatives instead of the person you live with. The documents that fix this:
- A will or revocable trust naming your partner
- A health care power of attorney, so your partner can make medical decisions if you cannot
- A financial power of attorney
- Beneficiary designations on retirement accounts, life insurance and bank accounts. See life insurance and beneficiary designations.
- Joint tenancy on a shared home, or a transfer-on-death deed, if you want your partner to keep the home
What Happens to Children When Unmarried Parents Separate?
Parents’ rights and duties to their children do not depend on marriage, but the legal steps are different.
Establishing Paternity
When a child is born to unmarried parents, the father is not legally recognized until paternity is established, either by both parents signing a Voluntary Paternity Acknowledgment or by a court order, usually after genetic testing. Until then, he has no court-ordered legal custody or placement. Signing the birth certificate alone may not give him the rights he expects; see does signing a birth certificate legitimize a child and establishing paternity without marriage. Our paternity attorneys can help with either route.
Custody, Placement and Child Support
Once paternity is established, either parent can ask the court for legal custody, placement and child support. The court decides custody and placement based on the child’s best interests, as it would for married parents; see custody laws for unmarried parents in Wisconsin. Child support follows the same guidelines for married and unmarried parents, based largely on each parent’s income and the placement schedule; see how Wisconsin child support is calculated. Court orders are enforceable, and ignoring them can lead to contempt of court.
Can an Unmarried Partner Get Support After a Breakup?
Not automatically. Maintenance (alimony) is available only to spouses in a divorce or legal separation. A partner who left a career to raise children or support the other’s work has no automatic claim to ongoing support when an unmarried relationship ends. The main routes are a cohabitation agreement that provides for support, or the contract and unjust enrichment claims described above.
If you receive maintenance from a previous marriage, moving in with a new partner can affect it. See how cohabitation affects alimony in Wisconsin.
Frequently Asked Questions
Does living together for a long time create a common law marriage in Wisconsin?
No. No length of time living together creates a marriage in Wisconsin. You need a marriage license. If you want protections similar to marriage without marrying, you have to create them through agreements, estate planning documents and how you title property.
Can we still register as domestic partners in Wisconsin?
No. Wisconsin county clerks stopped issuing declarations of domestic partnership to anyone who applied after April 1, 2018. Partnerships registered before then continue until one partner files a termination or either partner marries.
What happens to a jointly owned home when an unmarried couple separates?
If both of you are on the deed, you can agree on a buyout or a sale, or either of you can ask a court for partition, which may lead to a court-ordered sale. If only one of you is on the deed, the other has to prove a claim such as breach of an agreement or unjust enrichment to recover their contributions.
What happens to my partner’s property if they die without a will?
An unmarried partner does not inherit under Wisconsin’s rules for people who die without a will. You receive property only through a will or trust, a beneficiary designation, or ownership that passes to you automatically, such as joint tenancy.
Can unmarried partners make a binding agreement about property and money?
Yes. Wisconsin courts recognize contracts between unmarried partners about property and finances, and a written, signed cohabitation agreement reviewed by each partner’s own lawyer is the strongest form. Oral agreements are much harder to prove.
Does a domestic abuse restraining order work the same way for unmarried partners?
Yes. Wisconsin’s domestic abuse restraining orders cover people who live together, adults in a dating relationship and adults who have a child together, not just spouses. See how to get a restraining order in Wisconsin. If you are in danger, call 911.
