Chapter 766

766.59 History History: 1985 a. 37; 1991 a. 301; 1995 a. 201; 2015 a. 196; 2023 a. 127.

766.60 766.60 Optional forms of holding property; survivorship ownership.

766.60(1) (1) Spouses may hold marital property in a form that designates the holders of it by the words “(name of one spouse) or (name of other spouse) as marital property”.

766.60(2) (2) Spouses may hold marital property in a form that designates the holder of it by the words “(name of one spouse) and (name of other spouse) as marital property”.

766.60(3) (3) A spouse may hold individual property in a form that designates the holder of it by the words “(name of spouse) as individual property”.

766.60(4) (4) 

766.60(4)(a) (a) Spouses may hold property in any other form permitted by law, including but not limited to a concurrent form or a form that provides survivorship ownership. Except as provided in par. (b) and except with respect to any remedy a spouse has under this chapter, whether a tenancy in common or joint tenancy was created before or after the determination date, to the extent the incidents of the tenancy in common or joint tenancy conflict with or differ from the incidents of property classification under this chapter, the incidents of the tenancy in common or of the joint tenancy, including the incident of survivorship, control.

766.60(4)(b) (b)

766.60(4)(b)1. 1. Except as provided in subd. 2. or in a marital property agreement under s. 766.58:

766.60(4)(b)1.a. a. If a document of title, instrument of transfer or bill of sale expresses an intent to establish a joint tenancy exclusively between spouses after the determination date, the property is survivorship marital property under sub. (5).

766.60(4)(b)1.b. b. If a document of title, instrument of transfer or bill of sale expresses an intent to establish a tenancy in common exclusively between spouses after the determination date, the property is marital property.

766.60(4)(b)2. 2. A joint tenancy or tenancy in common exclusively between spouses which is given to the spouses by a 3rd party after the determination date is survivorship marital property or marital property, respectively, unless the donor provides otherwise.

766.60(5) (5) 

766.60(5)(a) (a) If the words “survivorship marital property” are used instead of the words “marital property” in the form described in sub. (1) or (2), the marital property so held is survivorship marital property. On the death of a spouse, the ownership rights of that spouse in the property vest solely in the surviving spouse by nontestamentary disposition at death. The first deceased spouse may not dispose at death of any interest in survivorship marital property. Holding marital property in a form described in sub. (1) or (2) does not alone establish survivorship ownership between the spouses with respect to the property held.

766.60(5)(b) (b) A real estate mortgage, a security interest under ch. 409 or a lien under s. 71.91 (5) (b) or ch. 49 or 779 on or against the interest of a spouse in survivorship marital property does not defeat the right of survivorship on the death of the spouse. The surviving spouse takes the interest of the deceased spouse subject to the mortgage, security interest or lien.

766.60(5)(c) (c) A judgment lien on the interest of a spouse in survivorship marital property does not defeat the right of survivorship on the death of the spouse. If execution on the judgment lien was issued before the spouse’s death the surviving spouse takes the interest of the deceased spouse subject to the lien. If execution on the judgment lien was not issued before the spouse’s death, the surviving spouse takes the interest of the deceased spouse free of the judgment lien, unless the judgment lien is on the interests of both spouses in the survivorship marital property and all of the property of the spouses was available under s. 766.55 to satisfy the obligation for which the judgment was rendered.

766.60 History History: 1983 a. 186; 1985 a. 37; 1987 a. 27 s. 3202 (47) (a); 1987 a. 312 s. 17; 1991 a. 301.

766.60 Note NOTE: 1991 Wis. Act 301 contains legislative council notes.

766.60 Annotation When land contract sellers who owned the property as survivorship marital property received the property back from the buyers by quitclaim deed in lieu of foreclosure, the sellers’ ownership interest could not be changed by the deed to other than survivorship property. Wonka v. Cari, 2001 WI App 274, 249 Wis. 2d 23, 637 N.W.2d 92, 01-0184.

766.60 Annotation A deed from one joint tenant in property as grantor to the grantor’s spouse and the grantor as grantees is effective to both create survivorship marital property between the spouses in the grantor’s undivided one-half of the property and to sever the joint tenancy between the original joint tenants in the property. Marchel v. Estate of Marchel, 2013 WI App 100, 349 Wis. 2d 707, 838 N.W.2d 97, 12-2131.

766.605 766.605 Classification of homestead. A homestead acquired after the determination date which, when acquired, is held exclusively between spouses with no 3rd party is survivorship marital property if no intent to the contrary is expressed on the instrument of transfer or in a marital property agreement. A homestead may be reclassified under s. 766.31 (10).

766.605 History History: 1983 a. 186; 1987 a. 393; 1991 a. 301.

766.605 Note NOTE: 1991 Wis. Act 301 contains legislative council notes.

766.605 Annotation The statutory definitions of homestead in ss. 71.52 (3), 706.01 (7), and 990.01 (13) (a) control the meaning of homestead in this section and, accordingly, required a conclusion that the property in this case became a homestead when there was a dwelling on it, occupied by the parties, which occurred after the determination date: the couple’s wedding. As such, the homestead was “held exclusively” between them, as spouses, “when acquired” and was survivorship marital property under this section. Droukas v. Estate of Felhofer, 2014 WI App 6, 352 Wis. 2d 380, 843 N.W.2d 57, 13-0147.

766.605 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.

766.61 766.61 Classification of life insurance policies and proceeds.

766.61(1) (1) In this section:

766.61(1)(a) (a) “Owner” means a person appearing on the records of the policy issuer as the person having the ownership interest, or means the insured if no person other than the insured appears on those records as a person having that interest. In the case of group insurance, the term means the holder of each individual certificate of coverage under the group plan and does not include the person who contracted with the policy issuer on behalf of the group, regardless of whether that person is listed as the owner on the contract.

766.61(1)(b) (b) Except as provided in sub. (3) (e), “ownership interest” means the rights of an owner under a policy.

766.61(1)(c) (c) “Policy” means an insurance policy insuring the life of a spouse and providing for payment of death benefits at the spouse’s death and, for purposes of sub. (3) (e), the term includes an insurance policy insuring the life of any individual and providing for payment of death benefits at the death of the insured. This paragraph does not apply to sub. (2).

766.61(1)(d) (d) “Proceeds” means the death benefit from a policy and all other economic benefits from it, whether they accrue or become payable as a result of the death of an insured person or upon the occurrence or nonoccurrence of another event.

766.61(2) (2) 

766.61(2)(a) (a) In this subsection:

766.61(2)(a)1. 1. “Business day” has the meaning given under s. 421.301 (6).

766.61(2)(a)2. 2. “Notice of claim” means a written notice, by or on behalf of a spouse, former spouse, surviving spouse or a person claiming under a deceased spouse’s disposition at death, that the person claims to be entitled to proceeds, payments or an interest in the policy.

766.61(2)(a)3. 3. “Policy” means an insurance policy insuring the life of a spouse or a life insurance policy of which a spouse is the owner.

766.61(2)(b) (b) Except as provided in par. (c):

766.61(2)(b)1. 1. A policy issuer may rely on and act in accordance with the issuer’s policy and records. If a policy issuer makes payments or takes actions in accordance with the policy and the issuer’s records, the issuer is not liable because of those payments or actions.

766.61(2)(b)2. 2. The classification of a policy or a portion of a policy as marital property has no effect on the policy issuer’s duty to perform under the issuer’s contract when making payment or taking action in accordance with the policy and the issuer’s records.

766.61(2)(c) (c)

766.61(2)(c)1. 1. If at least 5 business days before making payment or taking action in accordance with the issuer’s policy and records, a policy issuer has received at its home office a notice of claim, the issuer shall notify the party directing the payment or action of the receipt of the notice of claim and shall not take any action on the policy for 14 business days.

766.61(2)(c)2. 2. If within 14 business days after receiving the notice of claim the issuer receives at its home office, as purporting to support the notice of claim, a decree, marital property agreement, written directive signed by the beneficiary and surviving spouse, consent under sub. (3) (e) or proof that a legal action has been filed, including a copy of an election filed pursuant to s. 861.08 (1), to secure an interest as evidenced in such a document, the issuer shall make payment or take action on the policy after the issuer receives from a court or from the claimant and the person directing action or payment written documentation indicating that the dispute has been resolved.

766.61(2)(c)3. 3. If documentation purporting to support the claim is not submitted as described under subd. 2., the policy issuer shall take action or make payment as if the notice of claim had not been received.

766.61(2)(d) (d) A policy issuer is not liable to any person for any claim for damages as a result of the issuer’s suspension of policy action or the taking of any action pursuant to this subsection. A policy issuer shall pay interest which accrues during the suspension of any action under this subsection.

766.61(2m) (2m) 

766.61(2m)(a) (a) In determining the marital property component of the ownership interest and proceeds of a policy under sub. (3), the date on which a policy becomes effective is the date of original issuance or coverage of the policy, whichever is earlier, if the policy is thereafter kept in force merely by continuing premium payments, without any further underwriting by the issuer. If additional underwriting is required after original issuance of the policy or if the amount of proceeds increases after original issuance as a result of unscheduled additional premiums paid by the policyholder, the effective date of the policy is the date on which the newly underwritten right to proceeds or the right to increased proceeds begins.

766.61(2m)(b) (b) In determining the marital property component of the ownership interest and proceeds of a group policy sponsored by an employer or association under sub. (3), the date on which the policy becomes effective is the date on which individual coverage begins, notwithstanding that the employer or association thereafter changes policy issuers or that the amount of coverage changes under the policy pursuant to the plan or benefit offered by the employer or association. If additional underwriting is required after original issuance of the policy, or if the coverage is provided by a different employer or association, the effective date of the policy is the date on which the newly underwritten or newly provided coverage begins.

766.61(3) (3) Except as provided in subs. (4) to (6):

766.61(3)(a) (a)

766.61(3)(a)1. 1. Except as provided in subd. 2., the ownership interest and proceeds of a policy issued after the determination date which designates the insured as the owner are marital property, regardless of the classification of property used to pay premiums on the policy.

766.61(3)(a)2. 2. If after the issuance of a policy described under subd. 1. the insured or his or her spouse are at any time not domiciled in this state, the ownership interest and proceeds of the policy are mixed property. The marital property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the period during marriage that the policy was in effect and the denominator of which is the entire period that the policy was in effect.

766.61(3)(b) (b) The ownership interest and proceeds of a policy issued before the determination date which designates the insured as the owner are mixed property if a premium on the policy is paid from marital property after the determination date, regardless of the classification of property used to pay premiums on that policy after the initial payment of a premium on it from marital property. The marital property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the period during marriage that the policy was in effect after the date on which a premium was paid from marital property and the denominator of which is the entire period that the policy was in effect.

766.61(3)(c) (c)

766.61(3)(c)1. 1. Except as provided in subd. 2., the ownership interest and proceeds of a policy which designates the spouse of the insured as the owner are individual property of its owner, regardless of the classification of property used to pay premiums on the policy.

766.61(3)(c)2. 2. If after the issuance of a policy described under subd. 1. the insured or his or her spouse are at any time not domiciled in this state, the ownership interest and proceeds of the policy are individual property and property that is other than individual or marital property. The individual property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the entire period during which the policy was in effect less that period during which the insured or his or her spouse were at any time not domiciled in this state and the denominator of which is the entire period that the policy was in effect.

766.61(3)(d) (d) This chapter does not affect the ownership interest and proceeds of a policy that designates a person other than either spouse as the owner, if no premium on the policy is paid from marital property after the determination date. If a premium on the policy is paid from marital property after the determination date, the ownership interest and proceeds of the policy are in part property of the designated owner of the policy and in part marital property of the spouses, regardless of the classification of property used to pay premiums on that policy after the initial payment of a premium on it from marital property. The marital property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the period during marriage that the policy was in effect after the date on which a premium was paid from marital property and the denominator of which is the entire period that the policy was in effect.

766.61(3)(e) (e) A written consent in which a spouse consents to the designation of another person as the beneficiary of the proceeds of a policy or consents to the use of property to pay premiums on a policy is effective, to the extent that the written consent provides, to relinquish or reclassify all or a portion of that spouse’s interest in property used to pay premiums on the policy or in the ownership interest or proceeds of the policy without regard to the classification of property used by a spouse or another person to pay premiums on that policy. Unless the written consent expressly provides otherwise, a written consent under this paragraph is revocable in writing and is effective only with respect to the beneficiary named in it. Unless the written consent expressly provides otherwise, a revocation of a written consent is effective no earlier than the date on which it is signed by the revoking spouse and does not operate to reclassify any property which was reclassified or in which the revoking spouse relinquished an interest from the date of the consent to the date of revocation. In this paragraph, “ownership interest” includes the interests of a spouse in a policy who is not an owner under the policy.

766.61(3)(f) (f) Designation of a trust as the beneficiary of the proceeds of a policy with a marital property component does not by itself reclassify that component.

766.61(4) (4) This section does not affect a creditor’s interest in the ownership interest or proceeds of a policy assigned to the creditor as security or payable to the creditor.

766.61(5) (5) The interest of a person as owner or beneficiary of a policy acquired under a decree or property settlement agreement incident to a prior marriage or to parenthood is not marital property, regardless of the classification of property used to pay premiums on that policy.

766.61(6) (6) This section does not affect the ownership interest or proceeds of a policy if neither spouse is designated as an owner in the policy or the policy issuer’s records and no marital property is used to pay a premium on the policy.

766.61(7) (7) Except as provided in s. 854.14 (3m) (b) 2., if a noninsured spouse predeceases an insured spouse, the decedent spouse’s marital property interest in a policy that designates the surviving spouse as the owner and insured is limited to a dollar amount equal to one-half of the marital property interest in the interpolated terminal reserve and in the unused portion of the term premium of the policy on the decedent spouse’s date of death. All other rights of the decedent spouse in the ownership interest or proceeds of the policy, other than the marital property interest described in this subsection, terminate at the decedent spouse’s death.

766.61(8) (8) This section does not apply to a policy held by a deferred employment benefit plan. Classification of a deferred employment benefit, regardless of the nature of the assets held by the deferred employment benefit plan, is determined under s. 766.62.

766.61 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 1991 a. 301; 1997 a. 188; 2005 a. 216.

766.61 Note NOTE: 1991 Wis. Act 301 contains legislative council notes.

766.62 766.62 Classification of deferred employment benefits.

766.62(1) (1) 

766.62(1)(a) (a) Except as provided in par. (b), a deferred employment benefit attributable to employment of a spouse occurring after the determination date is marital property.

766.62(1)(b) (b) A deferred employment benefit attributable to employment of a spouse occurring after the determination date is mixed property if, after the determination date and during the period of employment giving rise to the benefit, the employed spouse or his or her spouse are at any time not domiciled in this state. The marital property component of that mixed property is the amount which results from multiplying the entire benefit by a fraction, the numerator of which is the period of employment giving rise to the benefit that occurred after the determination date and during marriage and the denominator of which is the total period of employment giving rise to the benefit.

766.62(2) (2) A deferred employment benefit attributable to employment of a spouse occurring partly before and partly after the determination date is mixed property. The marital property component of that mixed property is the amount which results from multiplying the entire benefit by a fraction, the numerator of which is the period of employment giving rise to the benefit that occurred after the determination date and during marriage and the denominator of which is the total period of employment giving rise to the benefit.

766.62(2m) (2m) Unless provided otherwise in a decree or marital property agreement, a mixed property deferred employment benefit shall be valued as of a dissolution or an employee spouse’s death.

766.62(3) (3) Ownership or disposition provisions of a deferred employment benefit plan which conflict with sub. (1) or (2) are ineffective between spouses or former spouses or between a surviving spouse and a person claiming under a deceased spouse’s disposition at death.

766.62(4) (4) 

766.62(4)(a) (a) If a deferred employment benefit plan administrator makes payments or takes actions in accordance with the plan and the administrator’s records, the administrator is not liable because of those payments or actions.

766.62(4)(b) (b) If a deferred employment benefit plan administrator has reason to believe that a dispute exists as to the rights of parties, or their successors, to a deferred employment benefit, the deferred employment benefit plan administrator may do any of the following:

766.62(4)(b)1. 1. Deposit the benefit funds with a court having jurisdiction of the proceedings. The court shall hold the funds and, upon determination of the owner, shall order disbursement in accordance with the determination. Property deposited with the court discharges the deferred employment benefit plan administrator from all claims for the benefit funds.

766.62(4)(b)2. 2. Refuse to transfer any funds from the plan to any person until the administrator receives from a court written documentation that the dispute has been resolved.

766.62(4)(b)3. 3. Make a payment under par. (a).

766.62(4)(c) (c) The protection afforded a deferred employment benefit plan administrator under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of deferred employment benefits.

766.62(5) (5) Except as provided in s. 854.14 (3m) (c), if the nonemployee spouse predeceases the employee spouse, the marital property interest of the nonemployee spouse in all of the following terminates at the death of the nonemployee spouse:

766.62(5)(a) (a) A deferred employment benefit plan.

766.62(5)(b) (b) Assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan.

766.62 History History: 1983 a. 186; 1985 a. 37 ss. 128, 187; 1987 a. 393; 1991 a. 301; 1993 a. 160; 2005 a. 216.

766.62 Note NOTE: 1991 Wis. Act 301 contains legislative council notes.

766.62 Annotation The termination under sub. (5) of a marital property interest in pension benefits did not prevent the application of the equitable principal that a murderer should not profit from the crime. The trial court acted properly in imposing a constructive trust on the decedent’s marital property interest in the murderer’s pension benefits. Hackl v. Hackl, 231 Wis. 2d 43, 604 N.W.2d 579 (Ct. App. 1999), 99-0499.

766.625 766.625 Classification of digital property, including the content of electronic communications.

766.625(1) (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.

766.625(2) (2) Exceptions.

766.625(2)(a) (a) Digital property in an account. An account and the digital property held in an account, as defined in s. 766.01 (9) (e), including the content of electronic communications, as defined in s. 711.03 (6), not otherwise classified as individual property under s. 766.31 (6) and (7) (a) to (d), is classified as the individual property of the holding spouse, regardless of the classification of property used to create, purchase, or otherwise acquire the account and digital property held in the account, unless the nonholding spouse can prove that any of the following apply: