Chapter 861

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.

861.03(4)(a)2. 2. With respect to a power of appointment over property, when the power terminates by exercise, release, lapse, default or otherwise.

861.03(4)(a)3. 3. With respect to a power of appointment under sub. (2) (d), when the power terminates by exercise or release.

861.03(4)(b) (b) The augmented deferred marital property estate includes the value of any deferred marital property transferred by the decedent within the 2 years immediately preceding the decedent’s death, including the following:

861.03(4)(b)1. 1. Deferred marital property that passed as a result of the termination of a right or interest in, or power of appointment over, property that would have been included in the augmented deferred marital property estate under subs. (2) (a), (b) or (d) or (3), if the right, interest or power had not terminated until the decedent’s death. The amount included is the value of the property that would have been included if the property were valued at the time the right, interest or power terminated.

861.03(4)(b)2. 2. Transfers by the decedent of or relating to the deferred marital property component of an insurance policy on the life of the decedent, if the proceeds would have been included under sub. (2) (c) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent that they were payable at the decedent’s death.

861.03(4)(b)3. 3. Any transfer of deferred marital property to the extent that it is not otherwise included in the augmented deferred marital property estate. The amount included is the value of the property at the time of the transfer, but only to the extent that the aggregate transfers to any one donee in either of the 2 years exceeded $10,000.

861.03 History History: 1985 a. 37; 1987 a. 393; 1997 a. 188.

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

861.04(1) (1) Subject to s. 861.05, the augmented deferred marital property estate includes the value of any deferred marital property that would have been included under s. 861.03 had the surviving spouse been the decedent.

861.04(2m) (2m) When the surviving spouse is treated as the decedent under sub. (1), the decedent is not treated as the surviving spouse for the purposes of s. 861.05 (1) (e) or (2m).

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

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

861.05(1) (1) Exclusions. The following are not included in the augmented deferred marital property estate:

861.05(1)(a) (a) Transfers of deferred marital property to the extent that the decedent received full or partial consideration for the transfer in money or money’s worth.

861.05(1)(b) (b) Transfers under the U.S. social security system.

861.05(1)(c) (c) Transfers of deferred marital property to persons other than the spouse who did not make the transfer, with the written joinder or written consent of that spouse.

861.05(1)(d) (d) Transfers of deferred marital property to the surviving spouse under s. 861.33 or 861.41.

861.05(1)(e) (e) The deferred marital property component of any deferred employment benefit plan, or of assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, held by the surviving spouse that would have terminated under s. 766.62 (5) had it been marital property.

861.05(2) (2) Valuation of decedent’s property and transfers.

861.05(2)(a) (a) Property included in the augmented deferred marital property estate under s. 861.03 (1), (2) (c) and (4) (b) 2. is valued as of the date of the decedent spouse’s death.

861.05(2)(b) (b) Property included under s. 861.03 (2) (a), (b) and (d) and (3) is valued immediately before the decedent spouse’s death.

861.05(2)(c) (c) Property included under s. 861.03 (4) (b) 1. is valued as of the date that the right, interest or power terminated.

861.05(2)(d) (d) Property included under s. 861.03 (4) (b) 3. is valued as of the date of the transfer.

861.05(2)(e) (e) If deferred marital property is commingled with other types of property but the deferred marital property component can be identified, only that component is valued.

861.05(2)(f) (f) The value of property included in the augmented deferred marital property estate includes the commuted value of any present or future interest in deferred marital property and the commuted value of deferred marital property payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan or any similar arrangement.

861.05(2m) (2m) Valuation of surviving spouse’s property and transfers. The surviving spouse’s property included in the augmented deferred marital property estate under s. 861.04 (1) is valued in the same manner as the decedent spouse’s property included in the augmented deferred marital property estate is valued under sub. (2), subject to the following:

861.05(2m)(a) (a) The surviving spouse shall be treated as having died after the decedent on the date of the decedent’s death notwithstanding the 120-hour survival requirement under s. 854.03 (1).

861.05(2m)(b) (b) Life insurance on the surviving spouse’s life shall have the value of the deferred marital property component of the interpolated terminal reserve and the unused portion of the term premium of the policy as of the date of the decedent’s death.

861.05(3) (3) Reduction for equitable proportion of expenses and enforceable claims. The value of deferred marital property included in the augmented deferred marital property estate under s. 861.03 or 861.04 shall be reduced by an equitable proportion of funeral and burial expenses, administrative expenses, other charges and fees and enforceable claims.

861.05(4) (4) Overlapping application; no double inclusion. If the same property could be included in the augmented deferred marital property estate under more than one provision of s. 861.03 or 861.04, the property is included only once, and it is included under the provision that yields the greatest value.

861.05 History History: 1985 a. 37; 1991 a. 301; 1997 a. 188; 2005 a. 216.

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

861.06 861.06 Satisfaction of deferred marital property elective share amount.

861.06(1) (1) Definition. In this section, “property transferred to the surviving spouse” includes outright transfers that have been disclaimed by the surviving spouse. The term does not include transfers in trust that have been disclaimed by the surviving spouse, unless the surviving spouse had a general power of appointment over the property in the trust during his or her lifetime or an interest in the trust after the disclaimer.

861.06(2) (2) Initial satisfaction of deferred marital property elective share amount. If the surviving spouse makes the election under s. 861.02, the following categories of property are used first to satisfy the elective share amount:

861.06(2)(a) (a) All property included in the augmented deferred marital property estate under s. 861.04.

861.06(2)(b) (b) All marital, individual, deferred marital, or deferred individual property, transferred to the surviving spouse, including any beneficial interest in property transferred in trust:

861.06(2)(b)1. 1. From the decedent’s probate estate, other than property transferred under s. 861.33 or 861.41, and other than property transferred to the surviving spouse under s. 861.31 or 861.35 except as ordered by the court under s. 861.31 (4) or 861.35 (4).

861.06(2)(b)2. 2. By nonprobate transfer at the decedent’s death.

861.06(2)(b)3. 3. By operation of any state or federal law, other than transfers under the U.S. social security system.

861.06(2)(b)4. 4. By the decedent at any time during the decedent’s life, except that the following shall be excluded:

861.06(2)(b)4.a. a. The first $5,000 of the value of gifts from the decedent to the surviving spouse each year. Each gift shall be valued as of the date of the gift.

861.06(2)(b)4.b. b. Gifts received from the decedent that the surviving spouse can show were subsequently and gratuitously transferred in a manner that, had they been the deferred marital property of the surviving spouse, would not have been included in the augmented deferred marital property estate under s. 861.04.

861.06(3) (3) Unsatisfied balance. After the property under sub. (2) has been applied toward satisfaction of the deferred marital property elective share amount, the remainder of the elective share amount shall be satisfied proportionally from transfers to persons other than the surviving spouse of property included in the augmented deferred marital property estate under s. 861.03 (1), (2), (3) or (4) (b) 2.

861.06(4) (4) Remaining unsatisfied balance. After the property under subs. (2) and (3) has been applied toward satisfaction of the deferred marital property elective share amount, the remainder of the elective share amount shall be satisfied proportionally from transfers to persons other than the surviving spouse of property included in the augmented deferred marital property estate under s. 861.03 (4) (b) 1. or 3.

861.06(5) (5) Equitable adjustment of shares. If all or part of a prorated share under sub. (2), (3) or (4) is uncollectible, the court may increase the prorated liability of recipients described under the same or another of the 3 subsections if all of the following conditions are satisfied:

861.06(5)(a) (a) The court finds that an equitable adjustment is necessary to avoid hardship for the surviving spouse.

861.06(5)(b) (b) No recipient or donee of a recipient is liable for an amount greater than the value of the deferred marital property subject to the election that was received.

861.06(6) (6) Valuation. The value of property used to satisfy the deferred marital property elective share includes the value of any property transferred outright to the surviving spouse, the commuted value of any present or future interest in property transferred to the surviving spouse, and the commuted value of property payable to the surviving spouse under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement.

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

861.07 861.07 Personal liability of recipients.

861.07(1) (1) Definition. In this section, “proceeds” includes:

861.07(1)(a) (a) The consideration, in money or property, received in exchange for the property that is the subject of the transfer.

861.07(1)(b) (b) Property acquired with the consideration received in exchange for the property that is the subject of the transfer.

861.07(2) (2) Persons liable. The following persons are liable to make a prorated contribution toward satisfaction of the surviving spouse’s deferred marital property elective share amount:

861.07(2)(a) (a) Original recipients of the decedent’s transfers of deferred marital property to others, irrespective of whether the recipient has the property or its proceeds.

861.07(2)(b) (b) Donees of the recipients under par. (a) if the donees have the property or its proceeds. If a donee has neither the property nor its proceeds but knew or should have known of the liability under this section, the donee remains liable for his or her share of the prorated contribution.

861.07(3) (3) Mode of satisfaction.

861.07(3)(a) (a) Subject to par. (b), a person who is liable under sub. (2) may either give up the proportional part of the decedent’s transfers to him or her or pay the value of the amount for which he or she is liable.

861.07(3)(b) (b) On petition of the surviving spouse showing that the mode of satisfaction chosen in par. (a) will create a hardship for the surviving spouse, the court may order that a different mode of satisfaction be used.

861.07(4) (4) Effect of federal preemption. If any provision of this subchapter is preempted by federal law with respect to any property interest or benefit that is included under s. 861.03 and that would pass but for that preemption to a person other than the surviving spouse, the recipient, unless he or she is a recipient for value, is subject to subs. (1) to (3).

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

861.08 861.08 Proceeding for election; time limit.

861.08(1) (1) Generally. Except as the time may be extended under sub. (3), in order to make the election, the surviving spouse shall, within 6 months after the date of the decedent’s death, do all of the following:

861.08(1)(a) (a) File a petition for the election with whichever of the following applies:

861.08(1)(a)1. 1. The court that has jurisdiction of the probate proceedings relating to the decedent’s estate if a judicial proceeding has been commenced.

861.08(1)(a)2. 2. The court that has jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence if no judicial proceeding has commenced.

861.08(1)(b) (b) Mail or deliver a copy of the petition to the personal representative, if any, of the decedent’s estate.

861.08(2) (2) Notification of interested parties. The surviving spouse shall give notice, in the manner provided in ch. 879, of the time and place set for hearing the petition to any persons who may be adversely affected by the election.

861.08(3) (3) Extension of time for election.

861.08(3)(a) (a) Subject to par. (b), the court may grant the surviving spouse an extension for making an election if the surviving spouse petitions the court for an extension, gives notice as specified in sub. (2) and shows cause for an extension.

861.08(3)(b) (b) The petition for extension of the time for making an election must be filed within 6 months after the decedent’s death, unless the court finds all of the following:

861.08(3)(b)1. 1. That the surviving spouse was prevented from filing the action or naming a particular interested party for reasons beyond his or her control.

861.08(3)(b)2. 2. That failure to extend the time for making an election will result in hardship for the surviving spouse.

861.08(4) (4) Withdrawal of election. The surviving spouse may withdraw the petition for an election at any time before the probate court has entered the final determination of the distribution of the decedent’s estate.

861.08(5) (5) Court determination of liability.

861.08(5)(a) (a) After notice and hearing, the court shall determine the deferred marital property elective share amount and shall determine the property that satisfies that amount under ss. 861.06 and 861.07.

861.08(5)(b) (b) If the personal representative does not hold the money or property included in the augmented deferred marital property estate, the court shall determine the liability of any person or entity that has any interest in the money or property or that holds that money or property.

861.08(5)(c) (c) The surviving spouse may choose to seek relief from fewer than all recipients. However, any such action shall not cause any other recipient’s liability to exceed the amount that he or she would have had to pay if all recipients had paid a prorated share.

861.08(6) (6) Suits authorized. An order or judgment of the court may be enforced in a suit for contribution or payment in other courts of this state or other jurisdictions.

861.08 History History: 1997 a. 188.

861.09 861.09 Right of election by or on behalf of surviving spouse. The surviving spouse must be living in order for an election to be filed. If the surviving spouse does not personally file the election, it may be filed on the surviving spouse’s behalf by the spouse’s conservator, guardian or guardian ad litem, or by an agent of the spouse acting under a power of attorney.

861.09 History History: 1997 a. 188.

861.10 861.10 Waiver of right to elect; failure to elect.

861.10(1) (1) Right to elect may be waived. The right to elect a deferred marital property elective share amount may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver must be contained in a marital property agreement that is enforceable under s. 766.58 or in a signed document filed with a court described in s. 861.08 (1) (a) after the decedent’s death.

861.10(2) (2) Waiver of “all rights”. Unless the waiver provides otherwise, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or in a complete property settlement entered into because of separation or divorce, is a waiver of all rights in the deferred marital property elective share amount.

861.10(3) (3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of property and is not a gift from the surviving spouse to the decedent spouse’s probate estate or to the beneficiaries of other transfers.