TOD Deed Wisconsin: Transfer on Death Deeds and Survivorship Marital Property Explained

Two of the most commonly used estate planning tools in Wisconsin — the Transfer on Death deed and survivorship marital property — share the same powerful feature: they transfer real estate to a surviving owner or beneficiary without going through probate court.

They also share the same dangerous blind spot: neither one fully protects against Wisconsin's Medicaid Estate Recovery Program.

Understanding both mechanisms, and their limits, is essential for anyone planning how to pass property in Wisconsin or administering an estate where these tools were used.

How Wisconsin's TOD Deed Works

The Transfer on Death deed, authorized under Wisconsin Statute 705.15, allows a property owner to name one or more beneficiaries who will automatically receive title to the real estate when the owner dies. The deed is recorded during the owner's lifetime and takes effect at death — no will required, no probate required.

Key features of the Wisconsin TOD deed:

• The owner retains full control of the property during their lifetime. They can sell it, mortgage it, or revoke the deed at any time without the beneficiary's consent.
• The beneficiary receives nothing until death occurs. A creditor of the beneficiary cannot attach the property before the owner dies.
• Multiple beneficiaries can be named, either in equal shares or in specific percentages.
• Contingent beneficiaries can be named in case the primary beneficiary predeceases the owner.

To create a valid TOD deed in Wisconsin, the deed must:

1. Expressly state that the transfer is effective at the transferor's death
2. Be executed and acknowledged (notarized) in the same manner as any other Wisconsin deed
3. Be recorded with the county Register of Deeds before the transferor's death

A TOD deed that is not recorded before the owner dies has no effect. This is the most common mistake — the document exists but was never filed.

Clearing Title After the Owner Dies

When the property owner dies, the beneficiary does not automatically receive a clean title just because they were named in the deed. They must take a formal step to document the transfer in the public record.

The beneficiary must record a Termination of Decedent's Interest form (formerly TOD-110, now unified with the HT-110 into a single standardized form) at the county Register of Deeds where the property is located. This filing requires:

• A certified copy of the death certificate
• A copy of the original recorded TOD deed
• A legal description of the parcel
• An Electronic Real Estate Transfer Return (eRETR) receipt from the Wisconsin Department of Revenue

Because the transfer is at death with no monetary consideration, it qualifies for an exemption from the real estate transfer fee ($3.00 per $1,000 of value that applies to normal sales). The correct exemption to declare on the eRETR is Exemption 11m: transfers on death under Wis. Stat. 705.15.

The flat recording fee is $30, payable to the county Register of Deeds.

Without this filing, the property technically passed to the beneficiary at death, but future buyers, title companies, and mortgage lenders will find the decedent still appearing in the chain of title. The Termination of Decedent's Interest filing is what clears that cloud.

How Survivorship Marital Property Works

Wisconsin is one of only a handful of community property states, and its system creates a unique type of ownership called survivorship marital property.

Under Wisconsin's Marital Property Act, property acquired by a married couple while domiciled in Wisconsin is generally presumed to be marital property — each spouse owns an undivided 50% interest regardless of whose name is on the deed or account.

When real estate or financial accounts are titled specifically as survivorship marital property, the decedent's 50% interest does not enter probate at death. Instead, it automatically terminates and the surviving spouse's 50% interest expands to 100% ownership — exactly the same mechanism as joint tenancy with right of survivorship.

The critical procedural requirement: just as with a TOD deed, the surviving spouse cannot simply do nothing. Title does not automatically clean itself. The surviving spouse must file a Termination of Decedent's Interest form (HT-110, which handles joint tenancy and survivorship marital property) with the county Register of Deeds, along with the eRETR and the death certificate. The exemption here is Exemption 11: termination of joint tenancies, survivorship marital property, or life estates.

Failure to file this document does not affect ownership rights — the surviving spouse does own the property. But it will create serious problems when they try to sell or refinance. Title companies routinely reject closings where the chain of title shows a deceased co-owner without a formal termination on record.

Regular Marital Property vs. Survivorship Marital Property

This distinction trips up many Wisconsin families. Simply owning property together during marriage does not automatically create survivorship rights.

If a deed reads "John Smith and Mary Smith, husband and wife" without any additional language, Wisconsin courts may presume the property is survivorship marital property if it was acquired after January 1, 1986 — but this presumption is not guaranteed in all circumstances and can be rebutted.

If the deed explicitly states "John Smith and Mary Smith as joint tenants" or "as survivorship marital property", the survivorship rights are clear.

If the property was acquired before the marital property system took effect (January 1, 1986), different rules apply and legal analysis may be necessary.

When the titling is ambiguous, the property may go through probate even if both names are on the deed. Do not assume survivorship rights exist without reviewing the actual deed language.

The Medicaid Estate Recovery Problem: Why TOD and Survivorship Don't Fully Protect

Here is the critical limitation that surprises most Wisconsin families. Both TOD deeds and survivorship marital property are designed to pass assets outside probate. The common assumption is that non-probate assets are safe from creditors — including the state.

That assumption is wrong in Wisconsin.

Wisconsin utilizes a federally authorized "expanded estate" definition for Medicaid recovery. The Wisconsin Department of Health Services has the legal authority to recover costs for long-term care from non-probate assets, including:

• Property transferred via a TOD deed
• Property held as survivorship marital property
• Joint tenancy accounts
• Assets held in revocable living trusts
• Life estates

This means that the primary estate planning tactic many Wisconsin families have used for decades — titling the house as survivorship marital property or using a TOD deed to avoid probate — provides no protection against Medicaid estate recovery if the property owner received qualifying long-term care benefits after age 55.

The DHS may not immediately enforce recovery. If there is a surviving spouse, a child under 21, or a child of any age who is blind or permanently disabled, the state defers collection until those persons are gone. But the lien exists and accrues.

This is not a reason to avoid TOD deeds and survivorship marital property. They are still valuable tools for avoiding the cost and delay of probate. But families should understand clearly that these tools address probate avoidance, not creditor avoidance.

If Medicaid benefits were received, the estate recovery program must be addressed directly — through the DHS notification process, through the spousal or disability deferral protections, or through a formal hardship waiver application.

The Wisconsin Estate Settlement Guide includes step-by-step instructions for filing the Termination of Decedent's Interest form with the Register of Deeds, the eRETR exemption codes, and a clear explanation of how the Medicaid Estate Recovery Program interacts with survivorship and TOD transfers — including who qualifies for deferral protection and how to apply for a hardship waiver.

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