Chapter 854

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.

854.20(2)(am) (am) Subject to sub. (5), a legally adopted person ceases to be treated as a child of the person’s birth parents and the birth parents cease to be treated as the parents of the child for the purposes specified in sub. (1) (a), except:

854.20(2)(am)1. 1. If the parent-child relationship between the child and one birth parent is replaced by adoption, but the relationship to the other birth parent is not replaced, then for all purposes the child continues to be treated as the child of the birth parent whose relationship was not replaced.

854.20(2)(am)2. 2.

854.20(2)(am)2.a. a. Subject to subd. 2. b. and c., if a birth parent of a child born to married parents dies and the other birth parent subsequently remarries and the child is adopted by the stepparent, the child continues to be treated as the child of the deceased birth parent for purposes of transfers at death through that parent and for purposes of any statute or other rule conferring rights upon children, issue or relatives of that parent under the law of intestate succession or governing instruments.

854.20(2)(am)2.b. b. Subd. 2. a. applies only if the adopted person was a minor at the time of adoption or if 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)(am)2.c. c. Subdivision 2. a. does not apply if the parental rights of the deceased birth parent had been terminated.

854.20(2)(bm) (bm) Subject to sub. (5), if an adopted child is subsequently adopted by another person, the former adoptive parent is considered to be a birth parent for purposes of this subsection.

854.20(5) (5) Contrary intent. 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.

854.20 History History: 1983 a. 447; 1993 a. 486; 1997 a. 188 ss. 96, 175; Stats. 1997 s. 854.20; 2005 a. 216.

854.21 854.21 Persons included in family groups or classes.

854.21(1) (1) Adopted persons.

854.21(1)(a) (a) Except as provided in sub. (7), a gift of property by a governing instrument to a class of persons described as “issue,” “lawful issue,” “children,” “grandchildren,” “descendants,” “heirs,” “heirs of the body,” “next of kin,” “distributees,” or the like includes a person adopted by a person whose birth child would be a member of the class, and issue of the adopted person, if the conditions for membership in the class are otherwise satisfied and at least one of the criteria under s. 854.20 (1) (b) 1., 2., and 3. is satisfied.

854.21(1)(b) (b) Except as provided in sub. (7), a gift of property by a governing instrument to a class of persons described as “issue,” “lawful issue,” “children,” “grandchildren,” “descendants,” “heirs,” “heirs of the body,” “next of kin,” “distributees,” or the like excludes a birth child and his or her issue otherwise within the class if the birth child has been adopted and would cease to be treated as a child of the birth parent under s. 854.20 (2).

854.21(2) (2) Individuals born to unmarried parents.

854.21(2)(a) (a) Subject to par. (b) and sub. (7), individuals born to unmarried parents are included in class gifts and other terms of relationship in accordance with s. 852.05.

854.21(2)(b) (b) In addition to the requirements of par. (a) and subject to the provisions of sub. (7), in construing a disposition by a transferor who is not the birth parent, an individual born to unmarried parents is not considered to be the child of a birth parent unless that individual lived while a minor as a regular member of the household of that birth parent or of that birth parent’s parent, brother, sister, spouse or surviving spouse.

854.21(3) (3) Relatives by marriage. Subject to sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by blood and relationships by marriage are construed to exclude relatives by marriage.

854.21(4) (4) Relatives of the half-blood. Subject to sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by the half-blood and relationships by the full-blood are construed to include both types of relationships.

854.21(5) (5) Posthumous issue. Subject to sub. (7), if a statute or governing instrument transfers an interest to a group of persons described as a class, such as “issue”, “children”, “nephews and nieces” or any other class, a person conceived at the time the membership in the class is determined and subsequently born alive is entitled to take as a member of the class if that person otherwise satisfies the conditions for class membership and survives at least 120 hours past birth.

854.21(6) (6) Person related through 2 lines. Subject to sub. (7), a person who is eligible to be a transferee under a statute or governing instrument through 2 lines of relationship is limited to one share, based on the relationship that entitles the person to the larger share.

854.21(7) (7) Contrary intent. 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.

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

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

854.22(1) (1) Interests in heirs, next of kin and the like. Subject to sub. (4), if a statute or governing instrument specifies that a present or future interest is to be created in a designated individual’s “heirs”, “heirs at law”, “next of kin”, “relatives”, “family” or a term that has a similar meaning, the property passes to the persons, including the state, to whom it would pass and in the shares in which it would pass under the laws of intestacy of the designated individual’s domicile, as if the designated individual had died immediately before the transfer was to take effect in possession or enjoyment. If the designated individual’s surviving spouse is living and remarried when the transfer is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual.

854.22(2) (2) Transfers to descendants, issue and the like. Subject to sub. (4), if a statute or governing instrument creates a class gift in favor of a designated individual’s “descendants”, “issue” or “heirs of the body” the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment in the shares that they would receive under the laws of intestacy of the designated individual’s domicile, as if the designated individual had then died owning the subject matter of the class gift.

854.22(3) (3) Doctrine of worthier title abolished. The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor’s “heirs”, “heirs at law”, “next of kin”, “distributees”, “relatives” or “family”, or a term that has a similar meaning, does not create or presumptively create a reversionary interest in the transferor.

854.22(4) (4) Contrary intent. 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.

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

854.23 854.23 Protection of payers and other 3rd parties.

854.23(1) (1) Definition. In this section, “governing instrument” includes an instrument described in s. 854.01, a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m), a confirmation under s. 867.046 (2), or a recorded application under s. 867.046 (5).

854.23(2) (2) Liability depends on notice.

854.23(2)(a) (a) A payer or other 3rd party is not liable for having transferred property to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter. However, a payer or other 3rd party is liable for a payment made or other action taken after the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter.

854.23(2)(b) (b) Severance of a joint interest under the provisions of this chapter does not affect any 3rd-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship, unless a document declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property that are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

854.23(3) (3) Manner of notice. A claimant shall mail written notice of a claimed lack of entitlement under sub. (2) to the 3rd party’s main office or home by registered or certified mail, return receipt requested, or serve the claim upon the 3rd party in the same manner as a summons in a civil action.

854.23(4) (4) Deposit of property with court.

854.23(4)(a) (a) Upon receipt of written notice of a claimed lack of entitlement under this chapter, a 3rd party may transfer property held by it to the court having jurisdiction of the probate proceedings relating to the decedent’s estate. If no proceedings have been commenced, the transfer may be made to the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the property and, upon its determination of the owner, shall order disbursement in accordance with the determination.

854.23(4)(b) (b) Property transferred to the court discharges the 3rd party from all claims for the property.

854.23(5) (5) Protection of financial institutions.

854.23(5)(a) (a) In this subsection:

854.23(5)(a)1. 1. “Account” has the meaning given in s. 705.01 (1) or 710.05 (1) (a).

854.23(5)(a)2. 2. “Financial institution” has the meaning given in s. 705.01 (3).

854.23(5)(b) (b) Notwithstanding sub. (2), in addition to the protections afforded a financial institution under ss. 701.1012 and 710.05 and chs. 112 and 705 a financial institution is not liable for having transferred an account to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the account, or for having taken any other action in reliance on the beneficiary’s apparent entitlement under the terms of a governing instrument, regardless of whether the financial institution received written notice of a claimed lack of entitlement under this chapter.

854.23(5)(c) (c) If a financial institution has reason to believe that a dispute exists as to the rights of parties, or their successors, to an account subject to a governing instrument, the financial institution may, but is not required to, do any of the following:

854.23(5)(c)1. 1. Deposit the account with a court as provided in sub. (4).

854.23(5)(c)2. 2. Refuse to transfer the account to any person.

854.23(5)(d) (d) The protection afforded a financial institution under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of accounts.

854.23 History History: 1997 a. 188; 2005 a. 216; 2013 a. 92.

854.23 Annotation While s. 854.01 defines “governing instrument” generally in ch. 854 quite broadly and clearly intends a marital property agreement be considered a governing instrument, s. 854.23, the section concerning protection of payers and other third-parties, defines “governing instrument” for purposes of that section, as one of 3 specific alternatives and is limited to those alternatives. A payer need not require compliance with this section before it can legally transfer funds to a beneficiary. However, to be afforded the protections under this section, compliance with its requirements is mandatory. Maciolek v. City of Milwaukee Employees’ Retirement System Annuity and Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254.

854.24 854.24 Protection of buyers. A person who purchases property for value or who receives property in partial or full satisfaction of a legally enforceable obligation is neither obligated under this chapter to return the property nor liable under this chapter for the value of the property, unless the person has notice as described in s. 854.23 (3).

854.24 History History: 1997 a. 188.

854.25 854.25 Personal liability of recipients not for value.

854.25(1) (1) Original recipients. A person who, not for value, receives property to which the person is not entitled under this chapter shall return the property. If the property is not returned, the recipient shall be personally liable for the value of the property to the person who is entitled to it under this chapter, regardless of whether the recipient has the property, its proceeds or property acquired with the property or its proceeds.

854.25(2) (2) Subsequent recipients.

854.25(2)(a) (a) If a recipient described in sub. (1) gives all or part of the property described in sub. (1) to a subsequent recipient, not for value, the subsequent recipient shall return the property. If the property is not returned, the subsequent recipient shall be personally liable to the person who is entitled to it under this chapter for the value received, if the subsequent recipient has the property, its proceeds or property acquired with the property or its proceeds.

854.25(2)(b) (b) If the subsequent recipient described in par. (a) does not have the transfer described, its proceeds or the property acquired with the property or its proceeds, but knew or should have known of his or her liability under this section, the subsequent recipient remains personally liable to the person who is entitled to it under this chapter for the value received.

854.25(3) (3) Mode of satisfaction. On petition of the person entitled to the property under this chapter showing that the mode of satisfaction chosen by the recipient in sub. (1) or (2) will create a hardship for the entitled person, the court may order that a different mode of satisfaction be used.

854.25 History History: 1997 a. 188.

854.26 854.26 Effect of federal preemption. If any provision in this chapter is preempted by federal law with respect to property covered by this chapter, a person who receives property, other than for full consideration, which the person is not entitled to receive under this chapter is subject to s. 854.25.

854.26 History History: 1997 a. 188.

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

854.30(1) (1) A will or trust of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula disposing of certain of the decedent’s property that is determined by reference to exemptions, exclusions, deductions, or credits under the federal estate tax, 26 USC 2001-2801, the federal generation-skipping transfer tax, 26 USC 2601-2664, or both, shall be administered as follows:

854.30(1)(a) (a) The formula disposing a decedent’s property shall be administered as if the provisions of the federal estate tax and federal generation-skipping transfer tax were in force just as they were on December 31, 2009, except that the applicable exclusion amount under 26 USC 2010 (c) for decedents’ estates shall be considered unlimited and the federal generation-skipping transfer tax exemption under 26 USC 2631 (c) shall also be considered unlimited, if all of the following apply:

854.30(1)(a)1. 1. The decedent is survived by a spouse.