Chapter 854

CHAPTER 854

TRANSFERS AT DEATH — GENERAL RULES

854.01   Definitions.

854.02   Scope.

854.03   Requirement of survival by 120 hours.

854.04   Representation; per stirpes; modified per stirpes; per capita at each generation; per capita.

854.05   No exoneration of encumbered property.

854.06   Predeceased transferee.

854.07   Failed transfer and residue.

854.08   Nonademption of specific gifts in certain cases.

854.09   Advancement; satisfaction.

854.10   Choice of law.

854.11   Gift of securities.

854.12   Debt to transferor.

854.13   Disclaimer of transfers at death.

854.14   Beneficiary who kills decedent.

854.15   Revocation of provisions in favor of former spouse or former domestic partner.

854.17   Marital property classification; ownership and division of marital property at death.

854.18   Order in which assets apportioned; abatement.

854.19   Penalty clause for contest.

854.20   Status of adopted persons.

854.21   Persons included in family groups or classes.

854.22   Form of distribution for transfers to family groups or classes.

854.23   Protection of payers and other 3rd parties.

854.24   Protection of buyers.

854.25   Personal liability of recipients not for value.

854.26   Effect of federal preemption.

854.30   Application of certain wills or trusts referring to repealed federal transfer taxes.

854.01 854.01 Definitions. In this chapter:

854.01(1) (1) “Extrinsic evidence” means evidence that would be inadmissible under the common law parole evidence rule or a similar doctrine because the evidence is not contained in the governing instrument to which it relates.

854.01(2) (2) “Governing instrument” means a will; a deed; a trust instrument; an insurance or annuity policy; a contract; a pension, profit-sharing, retirement, or similar benefit plan; a marital property agreement under s. 766.58 (3) (f); a beneficiary designation under s. 40.02 (8) (a); an instrument under ch. 705; an instrument that creates or exercises a power of appointment; or any other dispositive, appointive, or nominative instrument that transfers property at death.

854.01(3) (3) “Revocable,” with respect to a disposition, provision, or nomination, means one under which the decedent, at the time referred to, was alone empowered, by law or under the governing instrument, to change or revoke, regardless of whether the decedent was then empowered to designate himself or herself in place of a former designee, and regardless of whether the decedent then had the capacity to exercise the power.

854.01 History History: 1997 a. 188; 2005 a. 216 ss. 89, 90, 144.

854.02 854.02 Scope. This chapter applies to all statutes and governing instruments that transfer property at death.

854.02 History History: 1997 a. 188.

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

854.03 854.03 Requirement of survival by 120 hours.

854.03(1) (1) Requirement of survival. Except as provided in sub. (5), if property is transferred to an individual under a statute or under a provision in a governing instrument that requires the individual to survive an event and it is not established that the individual survived the event by at least 120 hours, the individual is considered to have predeceased the event.

854.03(2) (2) Co-owners with right of survivorship.

854.03(2)(a) (a) In this subsection, “co-owners with right of survivorship” includes joint tenants, owners of survivorship marital property and other co-owners of property or accounts that are held under circumstances that entitle one or more persons to all of the property or account upon the death of one or more of the others.

854.03(2)(b) (b) Except as provided in sub. (5), if property is transferred under a governing instrument that establishes 2 or more co-owners with right of survivorship, and if at least one of the co-owners did not survive the others by at least 120 hours, the property is transferred to the co-owners in proportion to their ownership interests.

854.03(3) (3) Marital property. Except as provided in subs. (4) and (5), if a husband and wife die leaving marital property and it is not established that one survived the other by at least 120 hours, 50 percent of the marital property shall be distributed as if it were the husband’s individual property and the husband had survived, and 50 percent of the marital property shall be distributed as if it were the wife’s individual property and the wife had survived.

854.03(4) (4) Life insurance. Except as provided in sub. (5), if the insured and the beneficiary under a policy of life or accident insurance have both died and it is not established that one survived the other by at least 120 hours, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. If the policy is the marital property of the insured and of the insured’s spouse and there is no alternative beneficiary except the estate or the personal representative of the estate, the proceeds shall be distributed as marital property in the manner provided in sub. (3).

854.03(5) (5) Exceptions.

854.03(5)(am) (am) This section does not apply if any of the following conditions applies:

854.03(5)(am)1. 1. The statute or governing instrument requires the individual to survive an event by a specified period.

854.03(5)(am)2. 2. The statute or governing instrument indicates that the individual is not required to survive an event by any specified period.

854.03(5)(am)3. 3. The statute or governing instrument deals with simultaneous deaths or deaths in a common disaster and the provision is relevant to the facts.

854.03(5)(am)4. 4. The imposition of a 120-hour survival requirement would cause a nonvested property interest or a power of appointment to fail to be valid, or to be invalidated, under s. 700.16 or under the rule against perpetuities of the applicable jurisdiction.

854.03(5)(am)5. 5. The application of this section to more than one statute or governing instrument would result in an unintended failure or unintended duplication of a transfer.

854.03(5)(am)6. 6. The application of this section would result in the escheat of an intestate estate under s. 852.01 (3).

854.03(5)(am)7. 7. The statute or governing instrument specifies that this statute, or one similar to it, does not apply.

854.03(5)(am)8. 8. The imposition of a 120-hour survival requirement would be administratively cumbersome and would not change the identity of the ultimate beneficiaries of the property or the property that each beneficiary would receive.

854.03(5)(bm) (bm) If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe the intent.

854.03(6) (6) Evidentiary standard. Unless the statute or governing instrument provides otherwise, proof that an individual survived the period required under subs. (1) to (4) must be by clear and convincing evidence.

854.03 History History: 1997 a. 188; 2005 a. 216.

854.04 854.04 Representation; per stirpes; modified per stirpes; per capita at each generation; per capita.

854.04(1) (1) By representation or per stirpes.