Chapter 700

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.

700.27(7)(a) (a) In general. Subject to sub. (8), unless the inter vivos governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, the disclaimed property devolves as if the disclaimant had died before the effective date of the transfer under the inter vivos governing instrument. If the disclaimed interest is a remainder contingent on surviving to the time of distribution, the disclaimed interest passes as if the disclaimant had died immediately before the time for distribution. If the disclaimant is an appointee under a power of appointment exercised by an inter vivos governing instrument, the disclaimed property devolves as if the disclaimant had died before the effective date of the exercise of the power of appointment. If the disclaimant is a taker in default under a power of appointment created by an inter vivos governing instrument, the disclaimed property devolves as if the disclaimant had predeceased the donee of the power of appointment.

700.27(7)(b) (b) Devolution to issue of the disclaimants. Unless the inter vivos governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, if, by law or under the inter vivos governing instrument, the issue of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time the disclaimed interest would have taken effect in possession or enjoyment, the disclaimed interest passes only to the issue of the disclaimant who survive when the disclaimed interest takes effect in possession or enjoyment.

700.27(7)(c) (c) Disclaimer of a devisable future interest.

700.27(7)(c)1. 1. In this paragraph, “devisable future interest” is a future interest that can be passed under the will of the person who holds the future interest.

700.27(7)(c)2. 2. If the disclaimed interest is a devisable future interest under the law governing the transfer, then the disclaimed interest devolves as if it were a nondevisable future interest.

700.27(8) (8) Acceleration of subsequent interests when preceding interest is disclaimed.

700.27(8)(a) (a) Subsequent interest not held by disclaimant. Unless the inter vivos governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, upon the disclaimer of a preceding interest, a subsequent interest not held by the disclaimant and limited to take effect in possession or enjoyment after the termination of the interest that is disclaimed accelerates to take effect as if the disclaimant had died immediately before the time when the disclaimed interest would have taken effect in possession or enjoyment or, if the disclaimant is an appointee under a power of appointment and that power of appointment has been exercised, as if the disclaimant had died before the effective date of the exercise of the power of appointment.

700.27(8)(b) (b) Subsequent interest held by disclaimant. Unless the inter vivos governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, upon the disclaimer of a preceding interest, a subsequent interest held by the disclaimant does not accelerate.

700.27(9) (9) Bar. Actions that bar disclaimer are as provided in s. 854.13 (11g).

700.27(10) (10) Effect of disclaimer or waiver. The effect of the disclaimer on the disclaimant and any successors in interest is as provided in s. 854.13 (11p).

700.27(11) (11) Nonexclusiveness of remedy.

700.27(11)(a) (a) This section does not affect the right of a person to waive, release, disclaim, or renounce property under any other statute or the common law, or as provided in the creating instrument.

700.27(11)(b) (b) Any disclaimer that meets the requirements of section 2518 of the Internal Revenue Code, or the requirements of any other federal law relating to disclaimers, constitutes an effective disclaimer under this section or s. 854.13.

700.27(12) (12) Construction of effective date. In this section, the effective date of a transfer under an inter vivos governing instrument is the date on which the transfer is a completed gift for federal gift tax purposes.

700.27 History History: 2005 a. 216; 2009 a. 180; 2013 a. 92; 2023 a. 127.

700.28 700.28 Prohibiting unreasonable restrictions on alienation of property.

700.28(1) (1) In this section, “political subdivision” means a city, village, town, or county.

700.28(2) (2) A political subdivision may not prohibit or unreasonably restrict a real property owner from alienating any interest in the real property.

700.28 History History: 2015 a. 391.

700.35 700.35 Renewable energy resource easements. In this section, “renewable energy resource easement” means an easement which limits the height or location, or both, of permissible development on the burdened land in terms of a structure or vegetation, or both, for the purpose of providing access for the benefited land to wind or sunlight passing over the burdened land. Every renewable energy resource easement shall be in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements. Renewable energy resource easements shall run with the land benefited and burdened unless otherwise expressly stated therein.

700.35 History History: 1981 c. 354.

700.40 700.40 Uniform conservation easement act.

700.40(1) (1) Definitions. In this section, unless the context otherwise requires:

700.40(1)(a) (a) “Conservation easement” means a holder’s nonpossessory interest in real property imposing any limitation or affirmative obligation the purpose of which includes retaining or protecting natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, preserving a burial site, as defined in s. 157.70 (1) (b), or preserving the historical, architectural, archaeological or cultural aspects of real property.

700.40(1)(b) (b) “Holder” means either of the following:

700.40(1)(b)1. 1. Any governmental body empowered to hold an interest in real property under the laws of this state or the United States.

700.40(1)(b)2. 2. Any charitable corporation, charitable association or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological or cultural aspects of real property.

700.40(1)(c) (c) “Third-party enforcement right” means a right provided in a conservation easement empowering a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder, to enforce any term of the easement.

700.40(2) (2) Creation, conveyance, acceptance and duration.

700.40(2)(a) (a) Except as otherwise provided in this section, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as any other easement.

700.40(2)(b) (b) No right or duty in favor of or against a holder and no right in favor of a person having a 3rd-party enforcement right arises under a conservation easement prior to its acceptance by that holder and recordation of that acceptance.

700.40(2)(c) (c) Except as provided in sub. (3) (b), a conservation easement is unlimited in duration unless the conservation easement otherwise provides.

700.40(2)(d) (d) No conservation easement may impair an interest in real property existing at the time the conservation easement is created, unless the owner of that interest is a party to the conservation easement or consents to it.

700.40(3) (3) Actions.

700.40(3)(a) (a) An action affecting a conservation easement may be brought by any of the following:

700.40(3)(a)1. 1. An owner of an interest in the real property burdened by the conservation easement.

700.40(3)(a)2. 2. A holder of the conservation easement.

700.40(3)(a)3. 3. A person having a 3rd-party enforcement right.

700.40(3)(a)4. 4. A person authorized by other law.

700.40(3)(b) (b) This section does not affect the power of a court to modify or terminate a conservation easement in accordance with any principle of law or equity.

700.40(4) (4) Validity of conservation easement. A conservation easement is valid even though any of the following applies:

700.40(4)(a) (a) It is not appurtenant to an interest in real property.

700.40(4)(b) (b) It can be or is assigned to another holder.

700.40(4)(c) (c) It is not of a character recognized traditionally at common law.

700.40(4)(d) (d) It imposes a negative burden.

700.40(4)(e) (e) It imposes affirmative obligations upon the owner of any interest in the burdened property or upon the holder.

700.40(4)(f) (f) The benefit does not touch or concern real property.

700.40(4)(g) (g) There is not privity of estate or of contract.