Chapter 700

700.08 700.08 Estate tail becomes fee simple; effect of gift over after attempted estate tail. The use of language in an instrument appropriate to create a present or future interest in fee tail, such as to a named person “and the heirs of his body” or “and the heirs of her body” or “and his issue” or “and her issue”, creates a present or future interest in fee simple. If the same instrument attempts to create a future interest after the interest that is made a fee simple by reason of this section, the future interest is valid.

700.08 History History: 1993 a. 486; 1999 a. 85.

700.09 700.09 Interest contingent on death without issue. If an instrument transfers an interest expressly contingent upon the death of a person without “heirs of the body”, “descendants”, “issue”, “children” or relatives described by other terms, the interest takes effect only if that person dies not having such a relative living at the time of death, or conceived then and born alive thereafter.

700.09 History History: 1991 a. 316.

700.10 700.10 Remainder to heirs of owner of life interest; abolition of rule in Shelley’s case. If an instrument purports to transfer an interest for life to one person and a remainder to that person’s heirs or the heirs of that person’s body, a remainder is created in that person’s heirs or heirs of that person’s body.

700.10 History History: 1991 a. 316.

700.11 700.11 Interests in “heirs” and the like.

700.11(1) (1) If a statute, inter vivos governing instrument, as defined in s. 700.27 (1) (c), or governing instrument, as defined in s. 854.01 (2), specifies that property is to be distributed to, or a future interest is to be created in, a designated individual’s “heirs,” “heirs at law,” “next of kin,” “relatives,” “family,” or a term that has a similar meaning, or if a class gift in favor of “descendants,” “issue,” or “heirs of the body” does not specify the manner in which the property is to be distributed among the class members, the property is distributed according to s. 854.22.

700.11(2) (2) The common law doctrine of worthier title is abolished under s. 854.22 (3). Situations in which the doctrine may have applied are governed by s. 854.22 (1).

700.11 History History: 1991 a. 316; 1997 a. 188; 2005 a. 216.

700.12 700.12 After-born persons included in class gift. With respect to membership in a class under a class gift, the status of a person who was born after the membership in the class was determined is governed by s. 854.21 (5).

700.12 History History: 1991 a. 316; 1997 a. 188.

700.13 700.13 Remainders presumed not to shorten prior interest; acceleration of remainders.

700.13(1) (1) If an instrument transfers an interest for life or years and a future interest to take effect on a stated contingency not defeating or avoiding the prior interest transferred, and the stated contingency occurs before the normal termination of the prior interest transferred, the future interest takes effect at the normal termination of the prior interest.

700.13(2) (2) The effect of a renunciation or release of an interest for life or years is as provided in ss. 700.27 (8) and 854.13 (10).

700.13 History History: 2005 a. 216.

700.14 700.14 Indestructibility of contingent future interests. No future interest is destroyed merely by the termination in any manner of any or all preceding interests before the happening of a contingency to which the future interest is subject.

700.15 700.15 Nominal conditions not enforced. A condition imposed by the transferor is not enforceable if it is or becomes merely nominal and of no actual or substantial benefit to the transferor or other person in whose favor it is to be performed.

700.16 700.16 Perpetuities and suspension of power of alienation.

700.16(1) (1) 

700.16(1)(a) (a) A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The permissible period is a life or lives in being plus a period of 30 years.

700.16(1)(b) (b) If the settlor of a living trust has an unlimited power to revoke, the permissible period is computed from termination of such power.

700.16(1)(c) (c) If a future interest or trust is created by exercise of a power of appointment, the permissible period is computed from the time the power of appointment is exercised if the power of appointment is a general power of appointment, as defined in s. 702.102 (7), even if the general power of appointment is exercisable only by will. In the case of other powers of appointment the permissible period is computed from the time the power of appointment is created but facts at the time the power of appointment is exercised are considered in determining whether the power of alienation is suspended beyond a life or lives in being at the time of creation of the power of appointment plus 30 years.

700.16(2) (2) The power of alienation is suspended when there are no persons in being who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personalty.

700.16(3) (3) There is no suspension of the power of alienation by a trust or by equitable interests under a trust if the trustee has power to sell, either expressed or implied, or if there is an unlimited power to terminate in one or more persons in being.

700.16(4) (4) This section does not apply to limit any of the following:

700.16(4)(a) (a) Transfers, outright or in trust, for charitable purposes;

700.16(4)(b) (b) Transfers to literary or charitable corporations;

700.16(4)(bm) (bm) Transfers to a veteran’s memorial organization under s. 84.09 (5r);

700.16(4)(c) (c) Transfers to any cemetery corporation, society or association;

700.16(4)(d) (d) Transfers, outright or in trust, to the state society of physicians and surgeons incorporated under the law of this state, when the transfer is for the advancement of medical science;

700.16(4)(e) (e) Transfers to any person pursuant to ch. 703; or

700.16(4)(f) (f) Employees’ trusts created as part of a plan or contract as described in s. 815.18 (3) (j).

700.16(5) (5) The common-law rule against perpetuities is not in force in this state.

700.16 History History: Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975); 1983 a. 189 s. 329 (26); 1989 a. 278; 1995 a. 406; 2013 a. 92; 2023 a. 127.

700.17 700.17 Classification and characteristics of certain concurrent interests.

700.17(1) (1) Classification of concurrent interests. Interests in property may be owned concurrently by 2 or more persons as joint tenants or as tenants in common. A joint tenancy or tenancy in common established exclusively between spouses after the determination date is classified as provided under s. 766.60 (4) (b).

700.17(2) (2) Characteristics of joint tenancy.

700.17(2)(a) (a) Each of 2 or more joint tenants has an equal interest in the whole property for the duration of the tenancy, irrespective of unequal contributions at its creation. On the death of one of 2 joint tenants, the survivor becomes the sole owner; on the death of one of 3 or more joint tenants, the survivors are joint tenants of the entire interest. If a survivor disclaims under s. 854.13 (2) (b), the joint tenancy is severed as of the date of death with respect to the disclaimed interest.

700.17(2)(am) (am) Survivorship under par. (a) is governed by s. 854.03 (2).

700.17(2)(b) (b) If a joint tenant unlawfully and intentionally kills another joint tenant of the same property, the disposition of the deceased joint tenant’s interest in the joint tenancy is governed by s. 854.14.

700.17(3) (3) Characteristics of tenancy in common. Each of 2 or more tenants in common has an undivided interest in the whole property for the duration of the tenancy. There is no right of survivorship incident to a tenancy in common, but a remainder may be created to vest ownership in the survivor of several persons who own as tenants in common other preceding interests, such as a life interest, in the same property.

700.17 History History: 1971 c. 66; 1981 c. 228; 1985 a. 37; 1987 a. 222; 1995 a. 360; 1997 a. 188; 1999 a. 85.

700.17 Note NOTE: As to sub. (1), see notes in 1985 Wis. Act 37, marital property trailer bill.

700.17 Annotation Rental income must be attributed to joint tenants in proportion to ownership. McManus v. Department of Revenue, 91 Wis. 2d 682, 283 N.W.2d 576 (1979).

700.17 Annotation Concurrent ownership; joint tenancy and tenancy in common. Talsky, 55 MLR 321.

700.18 700.18 Determination of cotenancy generally. Two or more persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are tenants in common, except as otherwise provided in s. 700.19 or ch. 766.

700.18 History History: 1991 a. 301.

700.18 Annotation A warranty deed to 2 grantees as “single persons” did not express an intent to classify the property as something other than survivorship marital property when the grantees subsequently married. The use of the phrase “single persons” simply described a fact: that at the time they purchased the vacant lot, the grantees were not married. “Single persons” does not represent a classification of property ownership of any kind, to wit, tenancy in common, joint tenancy, marital property, or any other recognized classification. Droukas v. Estate of Felhofer, 2014 WI App 6, 352 Wis. 2d 380, 843 N.W.2d 57, 13-0147.

700.18 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

700.19 700.19 Creation of joint tenancy.

700.19(1) (1) Generally. The creation of a joint tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale. Any of the following constitute an expression of intent to create a joint tenancy: “as joint tenants”, “as joint owners”, “jointly”, “or the survivor”, “with right of survivorship” or any similar phrase except a phrase similar to “survivorship marital property”.

700.19(2) (2) Husband and wife. If persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are described in the document, instrument or bill of sale as husband and wife, or are in fact husband and wife, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument or bill of sale. This subsection applies to property acquired before January 1, 1986, and, if ch. 766 does not apply when the property is acquired, to property acquired on or after January 1, 1986.

700.19(2m) (2m) Domestic partners. If persons named as owners in a document of title, transferees in an instrument of transfer, or buyers in a bill of sale are described in the document, instrument, or bill of sale as domestic partners under ch. 770, or are in fact domestic partners under ch. 770, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument, or bill of sale.

700.19(3) (3) Comortgagees. If covendors owned realty as joint tenants and a purchase money mortgage names the covendors as mortgagees, the mortgagees are joint tenants, unless the purchase money mortgage expresses an intent that the mortgagees are tenants in common.

700.19(4) (4) Cofiduciaries. Notwithstanding s. 700.18 and subs. (1) to (3), co-personal representatives and cotrustees hold title to interests in property as joint tenants.

700.19(5) (5) Change in common law requirements. The common law requirements of unity of title and time for creation of a joint tenancy are abolished.

700.19 History History: 1971 c. 66; 1983 a. 186; 1991 a. 301; 2009 a. 28.

700.19 Annotation The common law requirement that a grantor cannot also be a grantee in a deed creating a joint tenancy is no longer the law in Wisconsin. Marchel v. Estate of Marchel, 2013 WI App 100, 349 Wis. 2d 707, 838 N.W.2d 97, 12-2131.

700.19 Annotation Nature of cotenancies and their taxation — death and gift. Sheedy, Sullivan, 56 MLR 3.

700.20 700.20 Extent of undivided interests in tenancy in common. The extent of the undivided interests of tenants in common for the duration of the tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale; if no intent is expressed in the document, instrument or bill of sale, tenants in common are presumed to own equal undivided interests for the duration of the tenancy.

700.20 History History: 1971 c. 66.

700.21 700.21 Covendors in contracts to transfer.

700.21(1) (1) If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as joint tenants, the purchase price is payable to them as joint tenants, unless the contract expresses a contrary intent. If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as tenants in common, the purchase price is payable to them according to their interests, unless the contract expresses a contrary intent.

700.21(2) (2) If 2 or more persons are named as covendors in a contract to transfer an interest in property which is owned by less than all of the covendors, the purchase price is payable to the owner or owners of the interest in property to which the contract relates, unless the contract expresses an intent that the purchase price is payable to the covendors as joint tenants or as tenants in common.

700.21 History History: 1971 c. 66.

700.21 Annotation Under the plain language of the land contract in this case, the full contract price was payable to all co-vendors. By operation of sub. (1), the contract price is divided between the covendors according to their respective interests in the property, but the individual payments are not subdivided. Under sub. (1), each co-vendor had a property right to one-fourth of the full contract price and that is the amount that was garnishable by a co-vendor’s creditor. What the co-vendors had done with the previous payments was irrelevant and had no impact on the rights of a creditor to garnish a co-vendor’s interest in the amount due under the land contract. Prince Corporation v. Vandenberg, 2015 WI App 55, 364 Wis. 2d 457, 868 N.W.2d 599, 14-2097.

700.215 700.215 Exception for equitable rights of cotenants and 3rd persons. Nothing in ss. 700.17 to 700.21 prevents an equitable lien arising in favor of one cotenant against another tenant or tenants because of events occurring after the establishment of the cotenancy relationship nor prevents imposition of a constructive trust in favor of a 3rd person in an appropriate case.

700.215 History History: 1971 c. 66; 2005 a. 253.

700.22 700.22 Exception for bank deposits, checks, government bonds and vehicles.

700.22(1) (1) 

700.22(1)(a) (a) In this subsection, “deposits” include checking accounts or instruments deposited into or drawn on checking accounts, savings accounts, certificates of deposit, investment shares or any other form of deposit.

700.22(1)(b) (b) Nothing in ss. 700.17 to 700.21 governs the determination of rights to deposits in banks, building and loan associations, savings banks, savings and loan associations, credit unions or other financial institutions.

700.22(2) (2) Nothing in ss. 700.17 to 700.21 applies to United States obligations to the extent they are governed by law of the United States.

700.22(3) (3) Nothing in ss. 700.17 to 700.21 governs the transfer of interest in a vehicle for purposes of s. 342.15 (1) (d).

700.22 History History: 1971 c. 66; 1991 a. 221; 1995 a. 421; 1999 a. 85.

700.22 Cross-reference Cross-reference: See ch. 705 for provisions applicable to multiple party accounts.

700.22 Annotation There is no sound reason for ascribing to joint checking accounts the attributes of a common-law joint tenancy other than survivorship. No tracing of assets is permissible. Estates of Beisbier, 47 Wis. 2d 409, 177 N.W.2d 919 (1970).

700.23 700.23 Liability among cotenants for rents and profits.

700.23(1) (1) The provisions of this section apply only in the absence of a valid agreement to the contrary between the cotenants. As used in this section, “proportionate share” means a share determined by the number of joint tenants, in the case of a joint tenancy, and the extent of a tenant in common’s undivided interest, in the case of a tenancy in common.

700.23(2) (2) If land belonging to 2 or more cotenants is rented to a 3rd person, any cotenant may recover that cotenant’s proportionate share of the net rents collected by another cotenant after deduction of property taxes, maintenance costs and any other proper charges relating to the property.

700.23(3) (3) If land belonging to such cotenants is occupied by one cotenant and not by another, any cotenant not occupying the premises may recover from the occupying cotenant:

700.23(3)(a) (a) A proportionate share of the reasonable rental value of the land accruing after written demand for rent if the occupying tenant manifests an intent to occupy the premises to the exclusion of the other cotenant or cotenants;

700.23(3)(b) (b) A proportionate share of the net profits if the occupying cotenant engages in mining, cutting of timber, removal of sand or gravel, or any similar operation resulting in diminution of the value of the premises. In such a case, the occupying cotenant must render an accounting to the other cotenant, showing all receipts and expenditures, and is entitled to deduct a reasonable amount for the value of services provided by the occupying cotenant; but any other cotenant may in the alternative elect to recover that cotenant’s proportionate share of the amount which that cotenant can prove would have been received by licensing a 3rd party to carry on the same operation.

700.23(4) (4) If one cotenant has leased the premises from another cotenant, upon expiration of the lease it is presumed that the cotenant who has leased the premises from the other cotenant continues to hold over as provided in s. 704.25, unless that cotenant gives to the other cotenant prior to the expiration of the lease a written notice to the contrary, by one of the methods under s. 704.21.

700.23 History History: 1971 c. 66; 1991 a. 316.

700.23 Annotation Sub. (3) does not control all cases in which a nonoccupying cotenant asserts a claim against a cotenant in possession, and does not apply when a tenant has not been ousted from the property. Klawitter v. Klawitter, 2001 WI App 16, 240 Wis. 2d 685, 623 N.W.2d 169, 00-1464.

700.24 700.24 Death of a joint tenant; effect of liens. A real estate mortgage, a security interest under ch. 409, or a lien under s. 72.86 (2), 1985 stats., or s. 71.91 (5) (b), or ch. 49 or 779 on or against the interest of a joint tenant does not defeat the right of survivorship in the event of the death of such joint tenant, but the surviving joint tenant or tenants take the interest such deceased joint tenant could have transferred prior to death subject to such mortgage, security interest, or statutory lien.

700.24 History History: 1971 c. 307 s. 118; 1975 c. 39; 1979 c. 32 s. 92 (9); 1987 a. 27 s. 3202 (47) (a); 1987 a. 312 s. 17; 1999 a. 9; 2013 a. 20.