Chapter 861

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

861.018 861.018 Definitions. In this subchapter:

861.018(1) (1) “Augmented deferred marital property estate” means the property under s. 861.02 (2).

861.018(2) (2) “Deferred individual property” means any property that satisfies all of the following:

861.018(2)(a) (a) Is not classified by ch. 766.

861.018(2)(b) (b) Was brought to the marriage or acquired while the spouses were married.

861.018(2)(c) (c) Would have been classified as individual property under ch. 766 if the property had been acquired when ch. 766 applied.

861.018(3) (3) “Nonadverse party” means a person who has a power relating to a trust or other property arrangement but who does not have a substantial beneficial interest that would be adversely affected by exercise or nonexercise of that power, except that “nonadverse party” does not include a person who has a general power of appointment over property, with respect to that property.

861.018(4) (4) “Power” includes a power to designate the beneficiary of a beneficiary designation.

861.018(5) (5) “Power of appointment” includes a power to designate the beneficiary of a beneficiary designation.

861.018(6) (6) “Presently exercisable general power of appointment” means a power of appointment under which, at the time in question, the decedent held a power to create a present or future interest in himself or herself, his or her creditors, his or her estate or creditors of his or her estate and a power to revoke or invade the principal of a trust or other property arrangement, whether or not the decedent had the capacity to exercise the power at the time.

861.018(7) (7) “Property” has the meaning given in s. 851.27 and includes values subject to a beneficiary designation.

861.018(8) (8) “Right to income” includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust or a similar arrangement.

861.018(9) (9) “Transfer” includes, but is not limited to, the following:

861.018(9)(a) (a) An exercise or release of a presently exercisable general power of appointment held by the decedent.

861.018(9)(b) (b) A lapse at death of a presently exercisable general power of appointment held by the decedent.

861.018(9)(c) (c) An exercise, release or lapse of either of the following:

861.018(9)(c)1. 1. A general power of appointment that the decedent created in himself or herself.

861.018(9)(c)2. 2. A power under s. 861.03 (3) that the decedent conferred on a nonadverse party.

861.018 History History: 1997 a. 188.

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

861.02 861.02 Deferred marital property elective share amount.

861.02(1) (1) Amount. The surviving spouse has the right to elect an amount equal to no more than 50 percent of the augmented deferred marital property estate as determined under sub. (2).

861.02(2) (2) Augmented deferred marital property estate.

861.02(2)(a) (a) If the presumption of marital property under s. 766.31 (2) is rebutted as to the classification of an asset or a portion thereof, the asset or portion is presumed to be deferred marital property.

861.02(2)(b) (b) The augmented deferred marital property estate is the total value of the deferred marital property of the spouses, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction. It includes all types of property that fall within any of the following categories:

861.02(2)(b)1. 1. Probate and nonprobate transfers of the decedent’s deferred marital property under s. 861.03 (1) to (3).

861.02(2)(b)2. 2. Decedent’s gifts of deferred marital property made during the 2 years before the decedent’s death under s. 861.03 (4).

861.02(2)(b)3. 3. Deferred marital property of the surviving spouse under s. 861.04.

861.02(3) (3) Calculation of property interests. Exclusions from the augmented deferred marital property estate, valuation of included property and reduction for expenses and claims are governed by s. 861.05.

861.02(4) (4) Satisfaction. Satisfaction of the augmented deferred marital property elective share amount is governed by ss. 861.06, 861.07, and 861.11, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction.

861.02(5) (5) Proceedings. Proceedings for the election are governed by ss. 861.08 and 861.09.

861.02(6) (6) Waiver. Waiver of the deferred marital property elective share amount is governed by s. 861.10.

861.02(7) (7) Applicability of election.

861.02(7)(a) (a) Unless the right has been waived under s. 861.10 or other limitations of this subchapter apply, the surviving spouse is eligible to make the election if at the time of the decedent’s death the decedent is domiciled in this state.

861.02(7)(b) (b) If a decedent who is not domiciled in this state owns real property in this state, the rights of the surviving spouse in that property are governed by s. 861.20.

861.02(8) (8) Effect if death caused by spouse. Section 854.14 (2) (c) and (3m) (d) applies to election of deferred marital property if the decedent’s surviving spouse unlawfully and intentionally killed the decedent.

861.02 History History: 1983 a. 186; 1985 a. 37 ss. 144, 145; Stats. 1985 s. 861.02; 1987 a. 393; 1991 a. 224, 301, 315; 1993 a. 213; 1997 a. 188; 2005 a. 216.

861.02 Note NOTE: 1991 Wis. Act 301 contains legislative council notes.

861.02 Annotation Deferred marital property under sub. (1) is property subject to administration for all purposes, including the payment of claims under s. 879.63. In Matter of Estate of Moccero, 168 Wis. 2d 313, 483 N.W.2d 310 (Ct. App. 1992).

861.02 Annotation Wisconsin’s New Deferred Marital Property Election. Erlanger. Wis. Law. April 1999.

861.03 861.03 Augmented deferred marital property estate: decedent’s probate property and nonprobate or other property transfers. Subject to s. 861.05, the augmented deferred marital property estate includes all of the following:

861.03(1) (1) Deferred marital property in decedent’s probate estate. The value of deferred marital property in the decedent’s probate estate.

861.03(2) (2) Deferred marital property passing nonprobate at decedent’s death. The value of deferred marital property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent’s death, including the following:

861.03(2)(a) (a) The decedent’s fractional interest in deferred marital property that was held by the decedent with the right of survivorship.

861.03(2)(b) (b) The decedent’s ownership interest in deferred marital property that was held by the decedent in a form payable or transferable on death, including deferred employment benefit plans, individual retirement accounts, annuities and transfers under s. 766.58 (3) (f), or in co-ownership with the right of survivorship.

861.03(2)(c) (c) Deferred marital property in the form of proceeds of insurance on the life of the decedent, including accidental death benefits, that were payable at the decedent’s death, if the decedent owned the insurance policy immediately before death or if the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds.

861.03(2)(d) (d) Deferred marital property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment, to the extent that the property passed at the decedent’s death by exercise, release, lapse, default or otherwise.

861.03(3) (3) Deferred marital property transferred with retained rights or benefits.

861.03(3)(a) (a) The augmented deferred marital property estate includes the value of any deferred marital property transferred by the decedent in which the decedent retained rights or benefits, including but not limited to the following:

861.03(3)(a)1. 1. Deferred marital property in which the decedent retained the right to possession, use, enjoyment or income and that was irrevocably transferred, to the extent that the decedent’s right terminated at or continued beyond the decedent’s death.

861.03(3)(a)2. 2. Deferred marital property in which the decedent retained the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom, to control the time at which designated persons shall possess or enjoy the property or income therefrom, or to alter or amend the terms of the transfer of the property, to the extent that the decedent’s right terminated at or continued beyond the decedent’s death.

861.03(3)(a)3. 3. Any transfer of deferred marital property, including transfer of an income interest, in which the decedent created a power of appointment, including the power to revoke or terminate the transfer or to consume, invade or dispose of the principal or income, if the power was exercisable by the decedent alone, by the decedent in conjunction with another person or by a nonadverse party, and if the power is for the benefit of the decedent, creditors of the decedent, the decedent’s estate or creditors of the decedent’s estate.

861.03(3)(b) (b) The amount included under par. (a) 3. is the value of the property subject to the power of appointment if the power of appointment is over property, the value of the property that produces or produced the income if the power of appointment is over income or the power valued at the higher amount if the power of appointment is over both income and property. The value is limited by the extent to which the power of appointment was exercisable at the decedent’s death or the property passed at the decedent’s death by exercise, release, lapse, default or otherwise.

861.03(4) (4) Deferred marital property transferred within 2 years prior to death.

861.03(4)(a) (a) In this subsection, termination occurs:

861.03(4)(a)1. 1. With respect to a right or interest in property, when the right or interest terminates by the terms of the governing instrument or when the decedent transfers or relinquishes the right or interest.