SB759: Bill Text

SB759,,665 (1) The powerholder is also the donor of the power.

SB759,,666 (2) The powerholder reserved the power in a revocable trust.

SB759,,667 702.407 Remedy for breach of contract to appoint or not to appoint. The remedy for a powerholder’s breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.

SB759,,668 SUBCHAPTER V

SB759,,670 RIGHTS OF POWERHOLDER’S CREDITORS IN APPOINTIVE PROPERTY

SB759,,671 702.501 Creditor claim: general power created by powerholder. (1) In this section, “power of appointment created by the powerholder” includes a power of appointment created in a transfer by another person to the extent the powerholder contributed value to the transfer.

SB759,,672 (2) Appointive property subject to a general power of appointment created by a powerholder is subject to a claim of a creditor of the powerholder or of the powerholder’s estate to the extent provided in ch. 242 and any other applicable law relating to fraudulent conveyances.

SB759,,673 (3) Subject to sub. (2), appointive property subject to a general power of appointment created by a powerholder is not subject to a claim of a creditor of the powerholder or the powerholder’s estate to the extent the powerholder irrevocably appointed the property in favor of a person other than the powerholder or the powerholder’s estate.

SB759,,674 (4) Subject to subs. (2) and (3), and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the creation of the power of appointment, appointive property subject to a general power of appointment created by a powerholder is subject to a claim of a creditor of any of the following:

SB759,,675 (a) If the power of appointment is a presently exercisable power of appointment, the powerholder, to the same extent as if the powerholder owned the appointive property.

SB759,,676 (b) If the power of appointment is exercisable at the powerholder’s death, the powerholder’s estate, to the extent the estate is insufficient to satisfy the claim and subject to the right of a decedent to direct the source from which liabilities are paid.

SB759,,677 702.502 Creditor claim: general power not created by powerholder. (1) Except as otherwise provided in sub. (2), appointive property subject to a general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of any of the following:

SB759,,678 (a) If the power of appointment is a presently exercisable power of appointment, the powerholder to the extent the powerholder’s property is insufficient.

SB759,,679 (b) If the power of appointment is exercisable at the powerholder’s death, the powerholder’s estate or revocable trust, subject to the right of a decedent to direct the source from which liabilities are paid, but only to the extent of the powerholder’s exercise of that general power of appointment and only to the extent that the claim of the creditor has been filed and allowed in the powerholder’s estate or filed with and approved by the trustee of a revocable trust but not paid because the assets of the estate or revocable trust are insufficient. For purposes of this paragraph, a revocable trust is a trust that is revocable, as defined in s. 701.0103 (22), by the powerholder or jointly by the powerholder and the powerholder’s spouse.

SB759,,680 (2) Subject to s. 702.504 (3), a power of appointment created by a person other than the powerholder that is subject to an ascertainable standard relating to an individual’s health, education, support, or maintenance within the meaning of 26 USC 2041 (b) (1) (A) or 2514 (c) (1), is considered for purposes of this subchapter as a nongeneral power of appointment.

SB759,,681 (3) If during the powerholder’s lifetime, the powerholder exercises a general power of appointment created by a person other than the powerholder, a creditor of the powerholder can reach the appointed interests to the same extent that under the law relating to fraudulent conveyances the creditor could reach property that the powerholder has owned and transferred during the powerholder’s lifetime.

SB759,,682 702.503 Power to withdraw. (1) For purposes of this subchapter, and except as otherwise provided in sub. (2), a power to withdraw property from a trust is considered, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the property subject to the power to withdraw.

SB759,,683 (2) On the lapse, release, or waiver of a power to withdraw property from a trust, the power is treated as a presently exercisable general power of appointment only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of the following:

SB759,,684 (a) The amount referenced in section 2041 (b) (2) or 2514 (e) of the Internal Revenue Code.

SB759,,685 (b) The amount referenced in section 2503 (b) of the Internal Revenue Code for each individual other than the beneficiary who makes a transfer to the trust or who is considered to make a transfer to the trust pursuant to an election to split gifts under section 2513 (a) of the Internal Revenue Code.

SB759,,686 702.504 Creditor claim: nongeneral power of appointment. (1) Except as otherwise provided in subs. (2) and (3), appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder’s estate.

SB759,,687 (2) Appointive property subject to a nongeneral power of appointment is subject to a claim of a creditor of the powerholder or the powerholder’s estate to the extent that the powerholder owned the property and, reserving the nongeneral power, transferred the property in violation of the law relating to fraudulent conveyances.

SB759,,688 (3) For purposes of this subchapter, if the initial gift in default of appointment is to the powerholder or the powerholder’s estate, a nongeneral power of appointment is treated as a general power of appointment.

SB759,,689 702.505. Third parties in good faith protected. Any person acting without actual notice of claims of creditors under this subchapter incurs no liability to those creditors for transferring property that is subject to a power of appointment or that has been appointed. A purchaser without actual notice and for a valuable consideration takes an interest in property, legal or equitable, and takes the interest free of any rights that a powerholder’s creditor may have under this subchapter.

SB759,,690 SUBCHAPTER VI

SB759,,691 MISCELLANEOUS PROVISIONS

SB759,,692 702.601 Recording instruments relating to a power of appointment. (1) Each of the following instruments relating to a power of appointment is entitled to be recorded as a conveyance upon compliance with s. 706.05 (1):

SB759,,693 (a) An instrument, other than a will, exercising a power of appointment.

SB759,,694 (b) An instrument expressing consent to exercise a power of appointment.

SB759,,695 (c) A disclaimer.

SB759,,696 (d) A release.

SB759,,697 (2) If a power of appointment is exercised by a will, a certified copy of the will and of the certificate of probate thereof may be recorded.

SB759,,698 702.602 Uniformity of application and construction. In applying and construing this section, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SB759,,699 702.603 Relation to electronic signatures in global and national commerce act. (1) Except as provided in sub. (2), this chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 USC 7001, et seq.

SB759,,700 (2) This chapter does not modify, limit, or supersede 15 USC 7001 (c) or authorize electronic delivery of any of the notices described in 15 USC 7003 (b).

SB759,,701 702.604 Applicability. (1) (a) This chapter applies to a power of appointment created before, on, or after the effective date of this paragraph .... [LRB inserts date].

SB759,,702 (b) This chapter applies to a judicial proceeding concerning a power of appointment commenced on or after the effective date of this paragraph .... [LRB inserts date].

SB759,,703 (c) This chapter applies to a judicial proceeding concerning a power of appointment commenced before the effective date of this paragraph .... [LRB inserts date], unless the court finds that application of a particular provision of this chapter would interfere substantially with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision of this chapter does not apply and the superseded law applies.

SB759,,704 (d) A rule of construction or presumption in this chapter applies to an instrument executed before the effective date of this paragraph .... [LRB inserts date], unless there is a clear indication of a contrary intent in the terms of the instrument.

SB759,,705 (e) Except as otherwise provided in pars. (a) to (d), this chapter does not apply to an action taken before the effective date of this paragraph .... [LRB inserts date].

SB759,,706 (2) If a right is acquired, extinguished, or barred on the expiration of a prescribed period that commenced under a law of this state other than this chapter before the effective date of this subsection .... [LRB inserts date], the law continues to apply to the right.

SB759,119 Section 119. 711.03 (4m) of the statutes is created to read:

SB759,,708 711.03 (4m) “Consent instrument” means a written notarized document in physical or electronic form evidencing the user’s consent to the disclosure of the contents of electronic communications to a then acting fiduciary.

SB759,120 Section 120. 711.04 (1) of the statutes is renumbered 711.04 (1) (intro.) and amended to read:

SB759,,710 711.04 (1) (intro.) A user may use an online tool to direct the custodian to disclose or not disclose to a designated recipient or not to disclose some or all of the user’s digital property, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a any of the following:

SB759,,711 (a) A will, trust, power of attorney, or any other governing instrument.

SB759,121 Section 121. 711.04 (1) (b) of the statutes is created to read:

SB759,,713 711.04 (1) (b) A power of attorney.

SB759,122 Section 122. 711.04 (1) (c) of the statutes is created to read:

SB759,,715 711.04 (1) (c) A consent instrument.

SB759,123 Section 123. 711.04 (1) (d) of the statutes is created to read:

SB759,,717 711.04 (1) (d) Any other record.

SB759,124 Section 124. 711.04 (2) of the statutes is amended to read:

SB759,,719 711.04 (2) If a user has not used an online tool to give direction under sub. (1), or if the custodian has not provided an online tool, the user may allow or prohibit disclosure to a fiduciary of some or all of the user’s digital property, including the content of electronic communications sent or received by the user, in a will, trust, any other governing instrument, power of attorney, or any other governing consent instrument.

SB759,125 Section 125. 711.05 (2) (b) of the statutes is amended to read:

SB759,,721 711.05 (2) (b) Unless the user provided direction using an online tool, a copy of the user’s will, certification of trust under s. 701.1013, or other governing instrument, or consent instrument evidencing the deceased user’s consent to disclosure of the content of electronic communications.

SB759,126 Section 126. 711.06 (2) (intro.) of the statutes is amended to read:

SB759,,723 711.06 (2) Disclosure of content of electronic communications; principal. (intro.) To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal, or to the extent a consent instrument expressly consents to the disclosure to the agent the content of electronic communications sent or received by the principal, and unless directed otherwise by the principal or the court, a custodian shall grant an agent authority over the content of electronic communications or disclose to the agent the content of electronic communications if the agent gives the custodian all of the following:

SB759,127 Section 127. 711.06 (2) (b) of the statutes is amended to read:

SB759,,725 711.06 (2) (b) An original or a copy of the power of attorney that expressly grants the agent authority over the content of electronic communications of the principal or the consent instrument that expressly grants consent to disclosure to the agent of the content of electronic communications of the principal.

SB759,128 Section 128. 711.07 (3) (b) of the statutes is amended to read:

SB759,,727 711.07 (3) (b) A consent instrument or certification of the trust under s. 701.1013 that includes an original or successor user’s consent to disclosure of the content of electronic communications to the trustee.

SB759,129 Section 129. 711.13 of the statutes is amended to read:

SB759,,729 711.13 Marital property classification of digital property. Chapter 766 Section 766.625 governs the classification of digital property of a user who is married person.

SB759,130 Section 130. 766.01 (9) (a) of the statutes is amended to read:

SB759,,731 766.01 (9) (a) Except as provided in pars. (b) to (d) (f), property is “held” by a person only if a document of title to the property is registered, recorded, or filed in a public office in the name of the person or a writing that customarily operates as a document of title to the type of property is issued for the property in the person’s name.

SB759,131 Section 131. 766.01 (9) (e) of the statutes is created to read:

SB759,,733 766.01 (9) (e) 1. An account, as defined in s. 711.03 (1), and the digital property in the account, including the content of an electronic communication, as defined in s. 711.03 (6), are “held” by a person who is the user, as defined in s. 711.03 (28).

SB759,,734 2. The catalogue of electronic communications, as defined in s. 711.03 (4), or similar identifying information for digital property in an account, is “held” by a person who holds such digital property, including the content of such electronic communications, under subd. 1.

SB759,,735 3. For purposes of subds. 1. and 2., “person” has the meaning given under s. 711.03 (19).

SB759,132 Section 132. 766.01 (9) (f) of the statutes is created to read:

SB759,,737 766.01 (9) (f) A right or interest in digital property, not titled in the name of either spouse, that has been identified as having been originally created, purchased, or otherwise acquired by a spouse is “held” by that spouse.

SB759,133 Section 133. 766.31 (7) (b) of the statutes is amended to read:

SB759,,739 766.31 (7) (b) In Except as provided in s. 766.625 (2) (b) 1., in exchange for or with the proceeds of other individual property of the spouse.

SB759,134 Section 134. 766.31 (7) (g) of the statutes is created to read:

SB759,,741 766.31 (7) (g) By classification under s. 766.625 (2), designating an account and the digital property in an account, including the content of electronic communications, as defined in s. 711.03 (6), as the individual property of the holding spouse.

SB759,135 Section 135. 766.58 (7) (c) of the statutes is created to read:

SB759,,743 766.58 (7) (c) Unless the marital property agreement expressly provides otherwise, a marital property agreement that classifies digital property as marital property does not affect the operation of s. 766.625 (2).

SB759,136 Section 136. 766.58 (13) (b) of the statutes is renumbered 766.58 (13) (b) 1. and amended to read:

SB759,,745 766.58 (13) (b) 1. After the death of a spouse, if an estate administration proceeding is filed, no action concerning a marital property agreement may be brought later than 6 months after the inventory is filed under s. 858.01. If an amended inventory is filed, the action may be brought within 6 months after the filing of the amended inventory if the action relates to information contained in the amended inventory that was not contained in a previous inventory.

SB759,137 Section 137. 766.58 (13) (b) 2. and 3. of the statutes are created to read:

SB759,,747 766.58 (13) (b) 2. After the death of a spouse, if no estate administration proceeding is filed, no action concerning a marital property agreement may be brought later than 8 months after the death of the spouse.

SB759,,748 3. If an action concerning a marital property agreement is barred under subd. 2. and an estate administration proceeding is thereafter commenced, any judgment in an action concerning a marital property agreement not barred under subd. 1. may be recovered only from the estate of the deceased spouse.

SB759,138 Section 138. 766.58 (13) (c) of the statutes is amended to read:

SB759,,750 766.58 (13) (c) The court may extend the 6-month period under par. (b) 1. for cause if a motion for extension is made within the applicable 6-month period.

SB759,139 Section 139. 766.59 (1) of the statutes is amended to read:

SB759,,752 766.59 (1) A Except as provided in s. 766.625 (2) (b) 2., a spouse may unilaterally execute a written statement which classifies the income attributable to all or certain of that spouse’s property other than marital property as individual property.

SB759,140 Section 140. 766.625 of the statutes is created to read:

SB759,,754 766.625 Classification of digital property, including the content of electronic communications. (1) General. Except as otherwise determined under sub. (2), classification of digital property, including the content of electronic communications, is determined under s. 766.31.