Chapter 766

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:

766.625(2)(a)1. 1. ‘Creation.’ The account or the digital property in the account was not originally created, purchased, or otherwise acquired exclusively for the personal, noneconomic purposes of the holding spouse.

766.625(2)(a)2. 2. ‘Use.’ The account or the digital property in the account has at any time been used for purposes other than the personal, noneconomic purposes of the holding spouse.

766.625(2)(b) (b) Exchanges; income. Notwithstanding par. (a), with respect to an account and the digital property held in the account, as defined in s. 766.01 (9) (e), including the content of electronic communications, as defined in s. 711.03 (6), classified as individual property solely by reason of par. (a), all of the following apply:

766.625(2)(b)1. 1. ‘Exchanges; Proceeds.’ Section 766.31 (7) (b) does not apply, and in the event of a sale, exchange, or other disposition, property received in exchange for such account, or the digital property in the account, is classified as marital property.

766.625(2)(b)2. 2. ‘Income.’ Section 766.59 does not apply, and income during marriage and after the determination date attributable to the account, or the digital property in the account, is classified as marital property.

766.625 History History: 2023 a. 127.

766.63 766.63 Mixed property.

766.63(1) (1) Except as provided otherwise in ss. 766.61, 766.62, and 766.625 (2), mixing marital property with property other than marital property reclassifies the other property to marital property unless the component of the mixed property which is not marital property can be traced.

766.63(2) (2) Application by one spouse of substantial labor, effort, inventiveness, physical or intellectual skill, creativity or managerial activity to either spouse’s property other than marital property creates marital property attributable to that application if both of the following apply:

766.63(2)(a) (a) Reasonable compensation is not received for the application.

766.63(2)(b) (b) Substantial appreciation of the property results from the application.

766.63 History History: 1983 a. 186; 1985 a. 37; 1991 a. 301; 2023 a. 127.

766.63 Annotation Applying marital property presumptions and tracing principles. Lloyd v. Lloyd, 170 Wis. 2d 240, 487 N.W.2d 647 (Ct. App. 1992).

766.63 Annotation If tracing of the marital component of a mixed asset is established under sub. (1), reclassification does not occur. Instead, a claim for reimbursement exists in favor of the marital estate measured by the enhanced value of the asset, not the marital amounts expended. Estate of Kobylski v. Hellstern, 178 Wis. 2d 158, 503 N.W.2d 369 (Ct. App. 1993).

766.63 Annotation Under sub. (2), a party who applies substantial uncompensated labor to property may not recover if there is no resulting substantial appreciation. Estate of Kobylski v. Hellstern, 178 Wis. 2d 158, 503 N.W.2d 369 (Ct. App. 1993).

766.63 Annotation Expenditures that result in the mere maintenance of property, including the payment of property taxes, do not result in marital property being created through mixing. Krueger v. Rodenberg, 190 Wis. 2d 367, 527 N.W.2d 381 (Ct. App. 1994).

766.63 Annotation If a nonmarital asset is mixed with marital property, tracing the nonmarital property to its nonmarital source preserves the traced component’s nonmarital status. There is no requirement that the party tracing the nonmarital component also trace the mixing of the marital component. That the marital property was used to satisfy a nonmarital debt against the property does not change the nonmarital character of the traceable property. Bille v. Zuraff, 198 Wis. 2d 867, 543 N.W.2d 568 (Ct. App. 1995), 95-0007.

766.63 Annotation What Part of Yours is Mine?: The Creation of a Marital Property Ownership Interest by Improving Nonmarital Property Under Wisconsin’s Marital Property Law. Knauss. 2005 WLR 855.

766.70 766.70 Remedies.

766.70(1) (1) A spouse has a claim against the other spouse for breach of the duty of good faith imposed by s. 766.15 resulting in damage to the claimant spouse’s property. Except as otherwise provided in sub. (6), no spouse may commence an action under this subsection later than 6 years after acquiring actual knowledge of the facts giving rise to the claim.

766.70(2) (2) Upon request of a spouse, a court may order an accounting of the spouses’ property and obligations and may determine rights of ownership in, beneficial enjoyment of or access to marital property and the classification of all property of the spouses.

766.70(3) (3) Upon request of a spouse, a court may order the name of the spouse added to marital property or to a document evidencing ownership of marital property held in the name of the other spouse alone except with respect to any of the following:

766.70(3)(a) (a) An interest in a partnership or joint venture held by the other spouse as a general partner or as a participant.

766.70(3)(aL) (aL) An interest in a limited liability company held by the other spouse as a member.

766.70(3)(b) (b) An interest in a professional corporation, professional association or similar entity held by the other spouse as a stockholder or member.

766.70(3)(c) (c) An asset of an unincorporated business if the other spouse is the only one of the spouses involved in operating or managing the business.

766.70(3)(d) (d) A corporation, the stock of which is not publicly traded. Under this paragraph, stock of a corporation is publicly traded if both of the following apply:

766.70(3)(d)1. 1. The stock is traded on a national stock exchange or quoted on the national association of securities dealers automated quotations system.

766.70(3)(d)2. 2. The employees, officers and directors of the corporation own, in the aggregate, less than 10 percent in value of the outstanding shares of the stock in the corporation.

766.70(3)(dm) (dm) An interest in a digital property account, as defined in s. 711.03 (1).

766.70(3)(e) (e) Any other property if the addition would adversely affect the rights of a 3rd person.

766.70(4) (4) 

766.70(4)(a) (a) If marital property has been or is likely to be substantially injured by the other spouse’s gross mismanagement, waste or absence, upon request of a spouse a court may order any of the following:

766.70(4)(a)1. 1. A temporary or permanent limitation or termination of any of the other spouse’s management and control rights in marital property.

766.70(4)(a)2. 2. A change in classification of marital property.

766.70(4)(a)3. 3. A division of the obligations of the spouses existing on the date of the request, after considering the classification of the obligation under s. 766.55 and the factors specified under ss. 767.56 (1c) and 767.61.

766.70(4)(a)4. 4. That all obligations incurred after the court order are the obligations of the incurring spouse and that the other spouse is not liable for, and his or her property is not available to satisfy, the obligations.

766.70(4)(a)5. 5. That any property acquired by either spouse after the court order is the individual property of the acquiring spouse.

766.70(4)(b) (b) The court may make any order under this subsection subject to any equitable condition.

766.70(4)(c) (c) This subsection does not apply to property described in sub. (3) (a), (aL), (b), (d), and (e).

766.70(5) (5) When marital property is used to satisfy an obligation other than an obligation under s. 766.55 (2) (a) or (b), the nonobligated spouse may request the court to order that he or she receive as individual property marital property equal in value to the marital property used to satisfy the obligations of the obligated spouse, subject to the rights of any 3rd party who relied upon the availability of the marital property to satisfy any obligation under s. 766.55 (2) (a) or (b) and subject to equitable considerations. No person may bring an action under this subsection later than one year after the obligation is satisfied.

766.70(6) (6) 

766.70(6)(a) (a) Except as provided in pars. (b) and (c), if a gift of marital property during marriage by a spouse does not comply with s. 766.53, the other spouse may bring an action to recover the property or a compensatory judgment equal to the amount by which the gift exceeded the limit under s. 766.53. The other spouse may bring the action against the donating spouse, the gift recipient or both. The other spouse must commence the action within the earliest of one year after he or she has notice of the gift, one year after a dissolution or on or before the deadline for filing a claim under s. 859.01 after the death of either spouse. If the recovery occurs during marriage, it is marital property. If the recovery occurs after a dissolution or the death of either spouse, the recovery is limited to 50 percent of the recovery that would have been available if the recovery had occurred during marriage.

766.70(6)(b) (b)

766.70(6)(b)1. 1. If a transfer of marital property to a 3rd person during marriage by a spouse acting alone becomes a completed gift upon the death of the spouse or if an arrangement during marriage involving marital property by a spouse acting alone is intended to be and becomes a gift to a 3rd person upon the death of the spouse, the surviving spouse may bring an action against the gift recipient to recover one-half of the gift of marital property. The surviving spouse may not commence an action under this paragraph later than one year after the death of the decedent spouse.

766.70(6)(b)2. 2. If the spouse entitled to a remedy under subd. 1. predeceases the donor spouse, no action may be commenced later than one year after the decedent’s death. Except as provided in s. 766.61 (7), recovery in such an action is the same as if the donor spouse had predeceased the spouse entitled to recover, but is valued at the date of death of the spouse entitled to recover.

766.70(6)(c) (c)

766.70(6)(c)1. 1. If a spouse acting alone makes a gift of marital property to a 3rd person during marriage in the form of a joint tenancy and the spouse and the 3rd person are joint tenants with respect to that property, the other spouse has a right of reimbursement against the donor spouse or the gift recipient or both with respect to that portion of the gift representing the quotient resulting from dividing the number of joint tenants other than the donor spouse by the total number of joint tenants, including the donor spouse. The other spouse must commence the action within the earliest of one year after he or she has notice of the gift, one year after a dissolution or one year after the death of either spouse.

766.70(6)(c)2. 2. If the gift of marital property under subd. 1. remains in the form of a joint tenancy, at the death of the tenant spouse the surviving spouse has a right of reimbursement against the decedent spouse’s estate or the gift recipient or both with respect to one-half of that portion of the joint tenancy representing the quotient resulting from dividing one by the total number of joint tenants immediately before the death of the tenant spouse, valued at the date of death. The surviving spouse may not commence the action later than one year after the death of the decedent spouse. If the spouse entitled to a right of reimbursement under this subdivision predeceases the tenant spouse, the action may not be commenced later than one year after the decedent’s death. The portion subject to the right of reimbursement in such an action is the same as if the tenant spouse had predeceased the spouse with the right of reimbursement, but is valued at the date of death of the spouse with the right of reimbursement.

766.70(7) (7) After the date of death within 90 days after the earlier of either the receipt of the inventory listing any life insurance policy or deferred employment benefit plan covered by s. 766.61 or 766.62, or the discovery of the existence of such a policy or plan, the surviving spouse may purchase the decedent’s interest in the policy or plan from the decedent’s estate at the interest’s fair market value at the date of death, if all or part of the policy or plan is included in the decedent spouse’s estate.

766.70(8) (8) Except as provided in sub. (6) and ss. 766.55 (4m), 766.56 (2) (c) and 766.57, no decree issued under this section may adversely affect the interest of a 3rd party.

766.70 History History: 1983 a. 186; 1985 a. 37 ss. 89, 130 to 139; 1987 a. 393; 1989 a. 96; 1991 a. 301; 1993 a. 112; 2005 a. 443 s. 265; 2013 a. 209; 2021 a. 258; 2023 a. 127.

766.70 Annotation Intentional misrepresentation is a breach of the duty of good faith for which the exclusive pre-divorce remedy is sub. (1). Commencement of a divorce bars an action under this section. Gardner v. Gardner, 175 Wis. 2d 420, 499 N.W.2d 266 (Ct. App. 1993).

766.70 Annotation A divorce action terminates on the death of a spouse. After the death, an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving disputes over marital property lies under this section. Socha v. Socha, 204 Wis. 2d 474, 555 N.W.2d 152 (Ct. App. 1996), 95-1641.

766.70 Annotation A cause of action under this section requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker-client relationship, does not fall within this section and may be maintained independent of the divorce. Knafelc v. Dain Bosworth, Inc., 224 Wis. 2d 346, 591 N.W.2d 611 (Ct. App. 1999), 98-0067.

766.70 Annotation Under sub. (6) (b) 1., when an improper gift of marital property during marriage becomes effective upon the death of the spouse, the action is against the gift’s recipient and must be commenced within one year of the spouse’s death. A demand for formal proceedings in the decedent’s probate estate did not commence an action to enforce a marital property right to a nonprobate asset. As a spouse’s one-half interest in marital property is not subject to administration, even if the demand for formal administration could be called commencing an action, that “action” had nothing to do with asserting the surviving spouse’s marital property interest. Joyce v. Joyce, 2008 WI App 92, 312 Wis. 2d 745, 754 N.W.2d 515, 07-1751.

766.73 766.73 Invalid marriages. If a marriage is invalidated by a decree, a court may apply so much of this chapter to the property of the parties to the invalid marriage as is necessary to avoid an inequitable result. This section does not apply if s. 767.61 applies to the action to invalidate the marriage.

766.73 History History: 1983 a. 186; 1985 a. 37; 2005 a. 443 s. 265.

766.75 766.75 Treatment of certain property at dissolution. After a dissolution each former spouse owns an undivided one-half interest in the former marital property as a tenant in common, except as provided otherwise in a decree or an agreement entered into by the former spouses after dissolution.

766.75 History History: 1983 a. 186; 1985 a. 37.

766.95 766.95 Rules of construction. Unless displaced by this chapter, the principles of law and equity supplement its provisions.

766.95 History History: 1983 a. 186.

766.96 766.96 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

766.96 History History: 1983 a. 186.

766.97 766.97 Equal rights; common law disabilities.

766.97(1) (1) Women and men have the same rights and privileges under the law in the exercise of suffrage, freedom of contract, choice of residence, jury service, holding office, holding and conveying property, care and custody of children and in all other respects. The various courts and executive and administrative officers shall construe the statutes so that words importing one gender extend and may be applied to either gender consistent with the manifest intent of the legislature. The courts and executive and administrative officers shall make all necessary rules and provisions to carry out the intent and purpose of this subsection.

766.97(2) (2) Nothing in this chapter revives the common law disabilities on a woman’s right to own, manage, inherit, transfer or receive gifts of property in her own name, to enter into contracts in her own name or to institute civil actions in her own name. Except as otherwise provided in this chapter and in other sections of the statutes controlling marital property or property of spouses that is not marital property, either spouse has the right to own and exclusively manage his or her property that is not marital property, enter into contracts with 3rd parties or with his or her spouse, institute and defend civil actions in his or her name and maintain an action against his or her spouse for damages resulting from that spouse’s intentional act or negligence.

766.97(3) (3) The common law rights of a spouse to compel the domestic and sexual services of the other spouse are abolished. Nothing in this subsection affects a spouse’s common law right to consortium or society and companionship.

766.97 History History: 1983 a. 186 ss. 47, 48; Stats. 1983 s. 766.97; 1985 a. 37.