Chapter 700

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.

700.24 Annotation The docketing of a judgment creates a lien upon the debtor’s interest in joint tenancy property, but it does not, without levy and execution, sever the joint tenancy. If the debtor dies following docketing of the judgment, but prior to execution, the surviving joint tenant takes the entire interest in the property free of the judgment lien, as the debtor’s interest in the property that was subject to the lien has been extinguished. Northern State Bank v. Toal, 69 Wis. 2d 50, 230 N.W.2d 153 (1975).

700.24 Annotation A decedent’s one-half interest in joint property that was subject to a federal tax lien against the decedent becomes encumbered with the tax lien when it passes to the survivor. U.S. v. Librizzi, 108 F.3d 136 (1997).

700.25 700.25 Applicability of chapter. This chapter applies to interests in property in existence on July 1, 1971, and to interests in property created after such date. If application of any provision of this chapter to an interest in property in existence on July 1, 1971, is unconstitutional, it shall not affect application of the provision to an interest in property created after July 1, 1971.

700.26 700.26 Applicability of general transfers at death provisions. Chapter 854 applies to a transfer at death under an instrument of transfer.

700.26 History History: 1997 a. 188.

700.27 700.27 Disclaimer of transfers during life.

700.27(1) (1) Definitions. In this section:

700.27(1)(a) (a) “Beneficiary under an inter vivos governing instrument” includes any person who receives or might receive property under the terms or legal effect of an inter vivos governing instrument.

700.27(1)(b) (b) “Extrinsic evidence” has the meaning given in s. 854.01 (1).

700.27(1)(c) (c) “Inter vivos governing instrument”:

700.27(1)(c)1. 1. Means a gratuitous deed, inter vivos trust instrument, insurance policy, contract, inter vivos instrument that creates or exercises a power of appointment, or any other dispositive, appointive, or nominative instrument that transfers property other than a governing instrument as defined in s. 854.01 (2).

700.27(1)(c)2. 2. Includes an inter vivos gift that is not subject to a written instrument.

700.27(1)(d) (d) “Power of appointment” has the meaning given in s. 702.102 (15).

700.27(2) (2) Right to disclaim.

700.27(2)(a) (a) In general.

700.27(2)(a)1. 1. In this paragraph, “person” includes a person who is unborn or whose identity is unascertained.

700.27(2)(a)2. 2. A person who is a recipient of property or beneficiary under an inter vivos governing instrument, donee of a power of appointment created by an inter vivos governing instrument, appointee under a power of appointment exercised by an inter vivos governing instrument, taker in default under a power of appointment created by an inter vivos governing instrument, or person succeeding to disclaimed property created by an inter vivos governing instrument may disclaim any property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.

700.27(2)(b) (b) Partial disclaimer. Property transferred under an inter vivos governing instrument may be disclaimed in whole or in part, except that a partial disclaimer of property passing by an inter vivos governing instrument or by the exercise of a power of appointment may not be made if partial disclaimer is expressly prohibited by the inter vivos governing instrument or by the instrument exercising the power of appointment.

700.27(2)(c) (c) Spendthrift provision. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

700.27(2)(d) (d) Disclaimer by a guardian or conservator. A guardian of the estate or a conservator appointed under ch. 880, 2003 stats., or ch. 54 may disclaim on behalf of his or her ward, with court approval, if the ward is entitled to disclaim under this section.

700.27(2)(e) (e) Disclaimer by an agent under power of attorney. An agent under a power of attorney may disclaim on behalf of the person who granted the power of attorney if all of the following apply:

700.27(2)(e)1. 1. The person who granted the power of attorney is entitled to disclaim under this section.

700.27(2)(e)2. 2. The power of attorney specifically grants the power to disclaim.

700.27(2)(f) (f) Disclaimer by trustee. The trustee of a trust named as a recipient of property under an inter vivos governing instrument may disclaim that property on behalf of the trust if the trust authorizes disclaimer by the trustee. If the trust does not authorize disclaimer by the trustee, the trustee’s power to disclaim is subject to the approval of the court.

700.27(2)(g) (g) After death. A person’s right to disclaim survives the person’s death and may be exercised by the person’s personal representative or special administrator upon receiving approval from the court having jurisdiction of the person’s estate after hearing upon notice to all persons interested in the disclaimed property, if the personal representative or special administrator has not taken any action that would bar the right to disclaim under sub. (9).

700.27(2)(h) (h) Disclaimers of transfers at death. A person who is a recipient of property under a governing instrument, as defined in s. 854.01 (2), may disclaim the property as provided in s. 854.13.

700.27(3) (3) Instrument of disclaimer. The instrument of disclaimer must meet the provisions of subs. (4) and (5) and s. 854.13 (3) (a) to (c).

700.27(4) (4) Time for effective disclaimer.

700.27(4)(a) (a) Present interest. An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the effective date of the transfer under the inter vivos governing instrument. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.

700.27(4)(b) (b) Future interest. An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property is finally ascertained and his or her interest indefeasibly fixed. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.

700.27(4)(c) (c) Future right to income or principal. Notwithstanding pars. (a) and (b), an instrument disclaiming the future right to receive discretionary or mandatory distributions of income or principal from any source may be executed and delivered at any time.

700.27(4)(d) (d) Persons under 21. Notwithstanding pars. (a) and (b), a person under 21 years of age may disclaim at any time not later than 9 months after the date on which the person attains 21 years of age.

700.27(4)(e) (e) Interests arising by disclaimer. Notwithstanding pars. (a) and (b), a person whose interest in property arises by disclaimer or by default of exercise of a power of appointment created by an inter vivos governing instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date on which the donee’s power of appointment lapses.

700.27(5) (5) Delivery and filing of disclaimer.

700.27(5)(a) (a) Delivery. In addition to any requirements imposed by the inter vivos governing instrument, the instrument of disclaimer is effective only if, within the time specified under sub. (4), it is delivered to and received by any of the following:

700.27(5)(a)1. 1. The transferor of the property disclaimed.

700.27(5)(a)2. 2. The transferor’s legal representative.

700.27(5)(a)3. 3. The holder of legal title to the property.

700.27(5)(b) (b) Delivery to trustee. If the trustee of any trust to which the interest or power of appointment relates does not receive the instrument of disclaimer under par. (a), a copy shall also be delivered to the trustee. Failure to deliver a copy of the instrument of disclaimer to the trustee within the time specified under sub. (4) does not affect the validity of any disclaimer.

700.27(5)(c) (c) Recording. If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.

700.27(6) (6) Property not vested. The property disclaimed under this section shall be considered not to have been vested in, created in, or transferred to the disclaimant.

700.27(7) (7) Devolution.