Wisconsin’s Conundrum

By Paul Madden, Esq.

Wisconsin is an enigma. On the one hand, Wisconsin bans same sex marriage by a broadly worded constitutional amendment, providing:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.  A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

Art. 13, § 13.  Neither will Wisconsin recognize same sex marriages from another state or country.  W.S.A. § 765.04(1). 

On the other hand, of all of the states that have bans on same-sex marriage and civil unions, Wisconsin appears to be the only one that then went on to enact legislation governing the relationship between domestic partners.  W.S.A. § 770.05.  Domestic partnerships in Wisconsin provide select rights and responsibilities both to state employees (not limited to same-sex couples) and to same-sex couples generally.  The legislation addresses more than 40 rights and responsibilities, including the ability to inherit a partner’s estate in the absence of a will, hospital visitation, and the ability to access family medical leave to care for a sick partner.  It does not provide for same-sex adoptions, the disposition of human remains or other unenumerated rights. 

The tension between the constitutional amendment and the domestic partnership legislation is currently at issue in the Wisconsin courts.  On July 5, 2012, the Wisconsin Court of Appeals certified an appeal to the Wisconsin Supreme Court “to determine whether Wisconsin’s domestic partnership legislation violates the Wisconsin Constitution’s marriage amendment.”  Appling v. Doyle, No. 2011AP1572, 2012 WL 2579687 (Wis. Ct. App. July 5, 2012).  The appeals court framed the specific question to be whether the legislation creates “a legal status substantially similar to that of marriage for unmarried individuals, as prohibited by the marriage amendment,” but decided not to refine the issue in its certification because the issue to be resolved in the Supreme Court is uncomplicated.  The Governor of Wisconsin has refused to defend the domestic partnership legislation in the courts.

Real Property Series – Part 3 & 4 of 4: Dissolution & Conclusion

By B. Lafe Metz, Esq. & Tyler S. Dischinger, Esq.

This four part series addresses several broad issues encountered by nontraditional couples regarding the acquisition, ownership and transfer of real property. If you have not yet read part 1 or two, click here.  (See NOTE.)

  • In jurisdictions where nontraditional couples do not have the benefit of marriage statutes, they likewise do not have access to the corresponding divorce procedures. This makes for a more complicated and less predictable scenario should the two partners choose to part ways.
    Without a legal default to guide the way, it is important for the parties to be proactive by documenting their agreement about owning and maintaining the property, and keeping records of who has paid which expenses so each partner has evidence of his/her contribution to the jointly-owned property.
  • A formal joint tenancy or tenant in common agreement is often beneficial to establish a record of contributions, allocate responsibilities and benefits, and provide an agreed form of dispute resolution. While it is sometimes difficult for a couple to sit down and discuss business issues, especially early in a relationship, both partners and the relationship itself will ultimately benefit from clear communication and mutual understanding.
  • Ideally, each partner should be represented by independent counsel in the negotiation and execution of a joint tenancy or tenant in common agreement.


Nontraditional couples often own real property either as joint tenants with right of survivorship or as tenants in common. A discussion with counsel may help determine which approach is right for your family. Under either type of ownership, it is usually beneficial for the partners to enter into a written agreement addressing their respective ownership rights and obligations and providing mechanisms for future sales, leases, or mortgages of the property as well as dispute resolution procedures. If we may be helpful to your family in any way, please call Lafe Metz at 412-562-1044 or Tyler Dischinger at 412-562-1387.