Chapter 854

854.13 Note NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.

854.13 Annotation Unless barred by statute, a debtor can disclaim a bequest, thus defeating a creditor’s action under s. 813.026. Estate of Goldhammer v. Goldhammer, 138 Wis. 2d 77, 405 N.W.2d 693 (Ct. App. 1987).

854.13 Annotation Except for a tax-related “qualified disclaimer,” the 9-month time limit for the disclaimer of a future interest commences on the death of the life tenant. Estate of Balson, 183 Wis. 2d 31, 515 N.W.2d 474 (Ct. App. 1994).

854.13 Annotation A surviving spouse cannot disclaim a wrongful death claim under s. 854.13 so as to pass ownership of that claim to the deceased’s lineal heirs. Bowen v. American Family Insurance Company, 2012 WI App 29, 340 Wis. 2d 232, 811 N.W.2d 887, 11-0185.

854.13 Note NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. Act 188, which made extensive revisions to s. 853.40 and resulted in the creation of s. 854.06.

854.14 854.14 Beneficiary who kills decedent.

854.14(2) (2) Revocation of benefits. Except as provided in sub. (6), the unlawful and intentional killing of the decedent does all of the following:

854.14(2)(a) (a) Revokes a provision in a governing instrument that, by reason of the decedent’s death, does any of the following:

854.14(2)(a)1. 1. Transfers or appoints property to the killer.

854.14(2)(a)2. 2. Confers a power of appointment on the killer.

854.14(2)(a)3. 3. Nominates or appoints the killer to serve in any fiduciary or representative capacity, including personal representative, trustee, or agent.

854.14(2)(b) (b) Severs the interests of the decedent and killer in property held by them as joint tenants with the right of survivorship or as survivorship marital property and transforms the interests of the decedent and the killer into tenancies in common or marital property, whichever is appropriate.

854.14(2)(c) (c) Revokes every statutory right or benefit to which the killer may have been entitled by reason of the decedent’s death.

854.14(3) (3) Effect of revocation. Except as provided in sub. (6), provisions of a governing instrument that are revoked by this section are given effect as if the killer disclaimed all revoked provisions or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. Except as provided in sub. (6), the killer’s share of the decedent’s intestate estate, if any, passes as if the killer had disclaimed his or her intestate share under s. 854.13.

854.14(3m) (3m) Additional effects if death caused by spouse.

854.14(3m)(a) (a) Definitions. In this subsection:

854.14(3m)(a)1. 1. “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 “owner” 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.

854.14(3m)(a)2. 2. “Ownership interest” means the rights of an owner under a policy.

854.14(3m)(a)3. 3. “Policy” means an insurance policy insuring the life of a spouse and providing for payment of death benefits at the spouse’s death.

854.14(3m)(a)4. 4. “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.

854.14(3m)(b) (b) Life insurance.

854.14(3m)(b)1. 1. Except as provided in sub. (6), if a noninsured spouse unlawfully and intentionally kills an insured spouse, the surviving spouse’s ownership interest in a policy that designates the decedent spouse as the owner and insured, or in the proceeds of such a policy, 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 date of death of the decedent spouse. All other rights of the surviving 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.

854.14(3m)(b)2. 2. Notwithstanding s. 766.61 (7) and except as provided in sub. (6), if an insured spouse unlawfully and intentionally kills a noninsured spouse, the ownership interest at death of the decedent spouse in any policy with a marital property component that designates the surviving spouse as the owner and insured is a fractional interest equal to one-half of the portion of the policy that was marital property immediately before the death of the decedent spouse.

854.14(3m)(c) (c) Deferred employment benefits. Notwithstanding s. 766.62 (5) and except as provided in sub. (6), if the employee spouse unlawfully and intentionally kills the nonemployee spouse, the ownership interest at death of the decedent spouse in any deferred employment benefit, or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, that has a marital property component and that is attributable to the employment of the surviving spouse is equal to one-half of the portion of the benefit or assets that was marital property immediately before the death of the decedent spouse.

854.14(3m)(d) (d) Deferred marital property. Except as provided in sub. (6), if the surviving spouse unlawfully and intentionally kills the decedent spouse, the estate of the decedent shall have the right to elect no more than 50 percent of the augmented deferred marital property estate, as determined under s. 861.02 (2), as though the decedent spouse were the survivor and the surviving spouse were the decedent. The court shall construe the provisions of ss. 861.03 to 861.11 as necessary to achieve the intent of this paragraph.

854.14(4) (4) Wrongful acquisition of property. Except as provided in sub. (6), a wrongful acquisition of property by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrongdoing.

854.14(5) (5) Unlawful and intentional killing; how determined.

854.14(5)(a) (a) A final judgment establishing criminal accountability for the unlawful and intentional killing of the decedent conclusively establishes the convicted individual as the decedent’s killer for purposes of this section.

854.14(5)(b) (b) A final adjudication of delinquency on the basis of an unlawful and intentional killing of the decedent conclusively establishes the adjudicated individual as the decedent’s killer for purposes of this section.

854.14(5)(c) (c) In the absence of a judgment establishing criminal accountability under par. (a) or an adjudication of delinquency under par. (b), the court, upon the petition of an interested person, shall determine whether, based on the preponderance of the evidence, the killing of the decedent was unlawful and intentional for purposes of this section.

854.14(6) (6) Exceptions. This section does not apply if any of the following applies:

854.14(6)(a) (a) The court finds that, under the factual situation created by the killing, the decedent’s wishes would best be carried out by means of another disposition of the property.

854.14(6)(b) (b) The decedent provided in his or her will, by specific reference to this section, that this section does not apply.

854.14 History History: 1997 a. 188; 2001 a. 102; 2005 a. 216.

854.14 Annotation “Unlawful and intentional killing” in this section does not include assisting another to commit suicide. Lemmer v. Schunk, 2008 WI App 157, 314 Wis. 2d 483, 760 N.W.2d 446, 07-2680.

854.14 Annotation Statute in the Abyss: The Implications of Insanity on Wisconsin’s Slayer Statute. Eisold. 91 MLR 875 (2008).

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

854.15(1) (1) Definitions. In this section:

854.15(1)(a) (a) “Disposition of property” means a transfer, including by appointment, of property or any other benefit to a beneficiary designated in a governing instrument.

854.15(1)(b) (b) “Divorce, annulment or similar event” means any of the following:

854.15(1)(b)1. 1. A divorce, annulment, or other event or proceeding that would exclude a spouse as a surviving spouse under s. 851.30.

854.15(1)(b)2. 2. A termination of a domestic partnership or other event or proceeding that would exclude a person as a surviving domestic partner under s. 851.295.

854.15(1)(c) (c) “Former spouse” means a person whose marriage to the decedent or domestic partnership with the decedent has been the subject of a divorce, annulment or similar event.

854.15(1)(d) (d) “Relative of the former spouse” means an individual who is related to the former spouse by blood, adoption or marriage and who, after the divorce, annulment or similar event, is not related to the decedent by blood, adoption or marriage.

854.15(2) (2) Scope. This section applies only to governing instruments that were executed by the decedent before the occurrence of a divorce, annulment or similar event with respect to his or her marriage to the former spouse.

854.15(3) (3) Revocation upon divorce. Except as provided in subs. (5) and (6), a divorce, annulment or similar event does all of the following:

854.15(3)(a) (a) Revokes any revocable disposition of property made by the decedent to the former spouse or a relative of the former spouse in a governing instrument.

854.15(3)(b) (b) Revokes any disposition created by law to the former spouse or a relative of the former spouse.

854.15(3)(c) (c) Revokes any revocable provision made by the decedent in a governing instrument conferring a power of appointment on the former spouse or a relative of the former spouse.

854.15(3)(d) (d) Revokes the decedent’s revocable nomination of the former spouse or a relative of the former spouse to serve in any fiduciary or representative capacity.

854.15(3)(e) (e) Severs the interests of the decedent and former spouse in property held by them as joint tenants with the right of survivorship or as survivorship marital property and transforms the interests of the decedent and former spouse into tenancies in common.

854.15(4) (4) Effect of revocation. Except as provided in subs. (5) and (6), provisions of a governing instrument that are revoked by this section are given effect as if the former spouse and relatives of the former spouse disclaimed the revoked provisions or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce, annulment or similar event.

854.15(5) (5) Exceptions.

854.15(5)(am) (am) This section does not apply if any of the following applies:

854.15(5)(am)1. 1. The express terms of a governing instrument provide otherwise.

854.15(5)(am)2. 2. The express terms of a court order provide otherwise.

854.15(5)(am)3. 3. The express terms of a contract relating to the division of the decedent’s and former spouse’s property made between the decedent and the former spouse before or after the marriage or the divorce, annulment or similar event provide otherwise.

854.15(5)(am)4. 4. The divorce, annulment or similar event is nullified.

854.15(5)(am)5. 5. The decedent and the former spouse have remarried or entered into a new domestic partnership before the death of the decedent.

854.15(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 inapplicable to the transfer. Extrinsic evidence may be used to construe the intent.

854.15(6) (6) Revocation of nontestamentary provision in marital property agreement. The effect of a judgment of annulment, divorce or legal separation on marital property agreements under s. 766.58 is governed by s. 767.375 (1).

854.15 History History: 1997 a. 188; 2005 a. 216; 2005 a. 443 s. 265; 2009 a. 28.

854.15 Annotation Retroactive application of sub. (3) (a) is constitutional. Allstate Life Insurance Co. v. Hanson, 200 F. Supp. 2d 1012 (2002).

854.15 Annotation New Probate Code Affects Estate Planning at Divorce. Hughes. Wis. Law. March 1999.

854.17 854.17 Marital property classification; ownership and division of marital property at death. Classification of the property of a decedent spouse and surviving spouse, and ownership and division of that property at the death of a spouse, are determined under ch. 766 and s. 861.01.

854.17 History History: 1985 a. 37; 1997 a. 188 s. 92; Stats. 1997 s. 854.17; 2005 a. 216, 387; 2009 a. 180.

854.18 854.18 Order in which assets apportioned; abatement.

854.18(1) (1) 

854.18(1)(a) (a) Except as provided in sub. (3) or in connection with the deferred marital property elective share amount of a surviving spouse who elects under s. 861.02, the share of a surviving spouse who takes under s. 853.12, or the share of a surviving child who takes under s. 853.25, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

854.18(1)(a)1. 1. If the governing instrument is a will, property subject to intestacy.

854.18(1)(a)2. 2. Residuary transfers or devises under the governing instrument.

854.18(1)(a)3. 3. General transfers or devises under the governing instrument.

854.18(1)(a)4. 4. Specific transfers or devises under the governing instrument.

854.18(1)(b) (b) For purposes of abatement, a general transfer or devise charged on any specific property or fund is a specific transfer to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, it is a general transfer to the extent of the failure or insufficiency.

854.18(2) (2) 

854.18(2)(a) (a) Abatement within each classification is in proportion to the amount of property that each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the governing instrument.

854.18(2)(b) (b) If the subject of a preferred transfer is sold or used incident to administration of an estate, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

854.18(3) (3) If the governing instrument expresses an order of abatement, or if the transferor’s estate plan or the purpose of the transfer, as expressed, implied, or construed through extrinsic evidence, would be defeated by the order of abatement under sub. (1), the shares of the distributees abate as necessary to give effect to the intention of the transferor.

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

854.19 854.19 Penalty clause for contest. A provision in a governing instrument that prescribes a penalty against an interested person for contesting the governing instrument or instituting other proceedings relating to the governing instrument may not be enforced if the court determines that the interested person had probable cause for instituting the proceedings.

854.19 History History: 1997 a. 188.

854.20 854.20 Status of adopted persons.

854.20(1) (1) Inheritance rights between adoptive person and adoptive relatives.

854.20(1)(a) (a) Subject to par. (b) and sub. (5), a legally adopted person is treated as a birth child of the person’s adoptive parents and the adoptive parents are treated as the birth parents of the adopted person for purposes of transfers at death to, through, and from the adopted person and for purposes of any statute or other rule conferring rights upon children, issue, or relatives in connection with the law of intestate succession or governing instruments.

854.20(1)(b) (b) Subject to sub. (5), par. (a) applies only if at least one of the following applies:

854.20(1)(b)1. 1. The decedent or transferor is the adoptive parent or adopted child.

854.20(1)(b)2. 2. The adopted person was a minor at the time of adoption.

854.20(1)(b)3. 3. The adoptive parent raised the adopted person in a parent-like relationship beginning on or before the child’s 15th birthday and lasting for a substantial period or until adulthood.

854.20(2) (2) Inheritance rights between adopted person and birth relatives.