Chapter 861

CHAPTER 861

PROBATE — FAMILY RIGHTS

SUBCHAPTER I

INTEREST IN MARITAL PROPERTY

861.01   Ownership of marital property at death.

861.015   Satisfaction of nonholding spouse’s marital property interest in certain business property.

SUBCHAPTER II

DEFERRED MARITAL PROPERTY
ELECTIVE SHARE AMOUNT

861.018   Definitions.

861.02   Deferred marital property elective share amount.

861.03   Augmented deferred marital property estate: decedent’s probate property and nonprobate or other property transfers.

861.04   Augmented deferred marital property estate: surviving spouse’s property and transfers to others.

861.05   Augmented deferred marital property estate: calculation of property interests.

861.06   Satisfaction of deferred marital property elective share amount.

861.07   Personal liability of recipients.

861.08   Proceeding for election; time limit.

861.09   Right of election by or on behalf of surviving spouse.

861.10   Waiver of right to elect; failure to elect.

861.11   Protection of payers and other 3rd parties.

SUBCHAPTER III

OTHER RIGHTS, ALLOWANCES AND EXEMPTIONS

861.17   Rights in property transferred in fraud of surviving spouse.

861.20   Surviving spouse’s right in nondomiciliary decedent’s real property in this state.

861.21   Assignment of home to surviving spouse or surviving domestic partner.

861.31   Allowance to family during administration.

861.33   Selection of personalty by surviving spouse or surviving domestic partner.

861.35   Special allowance for support of spouse or domestic partner and support and education of minor children.

861.41   Exemption of property to be assigned to surviving spouse or surviving domestic partner.

861.43   Authority and powers of conservator, guardian or agent.

subch. I of ch. 861 SUBCHAPTER I

INTEREST IN MARITAL PROPERTY

Subch. I of ch. 861 Cross-reference Cross-reference: See definitions in ch. 851.

Subch. I of ch. 861 Note NOTE: 1985 Wis. Act 37, which created ss. 861.03 to 861.13, contains explanatory notes.

861.01 861.01 Ownership of marital property at death.

861.01(1) (1) Surviving spouse’s one-half interest in marital property. Upon the death of either spouse, the surviving spouse retains his or her undivided one-half interest in each item of marital property. The surviving spouse’s undivided one-half interest in each item of marital property is not subject to administration. Ownership and management and control rights are set forth under ss. 857.01 and 857.015.

861.01(2) (2) Interest of a 3rd party in marital property. A 3rd party who is a successor in interest to all or part of the decedent’s 50 percent interest in marital property is a tenant in common with the surviving spouse.

861.01(3m) (3m) Personal injury damages; lost earnings. Section 766.31 (7m) determines the rights of a surviving spouse to that part of a personal injury claim that represents future lost earnings of the surviving spouse.

861.01(4) (4) Enforcement of surviving spouse’s marital property rights in nonprobate assets. Section 766.70 applies to enforcement of a surviving spouse’s marital property rights in nonprobate assets.

861.01(5) (5) Division of marital property on aggregate basis. Section 766.31 (3) (b) determines how marital property may be divided upon the death of a spouse.

861.01 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 2005 a. 216.

861.01 Annotation New probate and non-probate property elections under Wisconsin’s marital property act. Erlanger and Weisberger. WBB Oct. and Nov. 1986.

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

861.015 861.015 Satisfaction of nonholding spouse’s marital property interest in certain business property.

861.015(1) (1) If following the death of a spouse property is subject to a directive under s. 857.015, the marital property interest of the nonholding spouse in the property shall be satisfied within one year after the decedent spouse’s death from other property which is of equal clear market value at the time of satisfaction. Except as provided under sub. (3), if the interest of the nonholding spouse under this section is not satisfied within one year after the decedent spouse’s death, this section does not apply and the nonholding spouse’s marital property interest in the property subject to the directive continues as if the directive had not been made.

861.015(2) (2) For purposes of this section, property subject to a directive is valued by its clear market value on the date of the decedent’s death. Satisfaction of the nonholding spouse’s marital property interest in the property subject to the directive shall be based on that value, plus any income from the property subject to the directive after the death of the decedent and before satisfaction. For purposes of determining the income from the property subject to a directive, such property shall be treated as a legacy or devise of property other than money under s. 701.1115.

861.015(3) (3) If the interest of the nonholding spouse under this section is not satisfied within one year after the decedent spouse’s death because the clear market value of the property subject to the directive has not been determined, the court having jurisdiction of the decedent spouse’s estate shall do either of the following:

861.015(3)(a) (a) Order that the interest of the nonholding spouse shall be satisfied after the determination of clear market value, at a date specified by the court.

861.015(3)(b) (b) Order that the interest of the nonholding spouse shall be satisfied before the determination of clear market value based on an estimate of the clear market value, subject to any necessary adjustment upon final determination of clear market value.

861.015(4) (4) The following property is not available to satisfy the nonholding spouse’s marital property interest in the property subject to the directive:

861.015(4)(a) (a) Property included in an order, or extension or revision of an order, for an allowance under s. 861.31 made before satisfaction of the nonholding spouse’s interest.

861.015(4)(b) (b) Property selected under s. 861.33 before satisfaction of the nonholding spouse’s interest.

861.015(4)(c) (c) Property included in an order for an allowance under s. 861.35 made before satisfaction of the nonholding spouse’s interest.

861.015(5) (5) Satisfaction of a nonholding spouse’s marital property interest under this section shall not adversely affect any of the following:

861.015(5)(a) (a) The nonholding spouse’s marital property interest in property not subject to the directive.

861.015(5)(b) (b) The nonholding spouse’s election under s. 861.02 of deferred marital property other than deferred marital property subject to the directive.

861.015 History History: 1987 a. 393; 1997 a. 188; 2005 a. 10; 2013 a. 92.

subch. II of ch. 861 SUBCHAPTER II

DEFERRED MARITAL PROPERTY
ELECTIVE SHARE AMOUNT