OTHER RIGHTS, ALLOWANCES AND EXEMPTIONS
861.17861.17 Rights in property transferred in fraud of surviving spouse. 861.17(1)(1) Nothing in this chapter precludes a court in an equitable proceeding from subjecting to the rights of the surviving spouse under ch. 852 and this chapter any property arrangement made by the decedent in fraud of those rights. A property arrangement in fraud of the rights of the surviving spouse means any of the following: 861.17(1)(a)(a) Any transfer or acquisition of property, regardless of the form or type of property rights involved, made by the decedent during marriage or in anticipation of marriage for the primary purpose of defeating the rights of the surviving spouse under ch. 852 and this chapter. 861.17(1)(b)(b) Any breach of the good faith duty imposed by s. 766.15 made for the primary purpose of defeating the rights of the surviving spouse in or to marital property. 861.17(2)(2) An arrangement made before marriage, or within one year after marriage, or prior to April 1, 1971, to provide for issue by a prior marriage is not a fraudulent property arrangement within the meaning of this section. 861.17(3)(3) If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the amount the spouse would receive under ch. 852 and this chapter. Other rules of this chapter apply so far as possible. A spouse who recovers under this subsection forfeits any power of appointment that the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power. 861.17(3m)(3m) If the spouse is successful in an action to reach fraudulent property arrangements involving marital property, recovery is limited to the surviving spouse’s interest in the marital property. Other rules of this chapter apply so far as possible. Recovery forfeits any power of appointment which the surviving spouse possesses over the remaining portion of the fraudulently arranged marital property, except a special power. 861.17(4)(4) The surviving spouse has no rights against any person dealing with the property without actual knowledge, or receipt of written notice, of the claim of the spouse. A person who has knowledge of facts and circumstances sufficient to put the person on inquiry as to a claim by the spouse does not have actual knowledge and is not required to make further inquiry. This subsection does not protect a gratuitous donee from the original beneficiary of the fraudulent arrangement. 861.17(5)(5) Every such suit must be brought within 3 years of decedent’s death, but may be barred by laches at an earlier date. 861.20861.20 Surviving spouse’s right in nondomiciliary decedent’s real property in this state. 861.20(1)(1) If a married person who does not have a domicile in this state dies and leaves a valid will disposing of real property in this state which is not the community property or marital property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in that property against the will of the decedent as if the property were located in the decedent’s domicile at the decedent’s death. The procedure of the decedent’s domicile for electing against the will applies to such an election. 861.20(2)(2) If a married person who does not have a domicile in this state dies and has an interest in real property in this state that is subject to administration but not disposed of by will, the surviving spouse has the same right to the property under intestate succession as if the property were located in the decedent’s domicile at decedent’s death. 861.21861.21 Assignment of home to surviving spouse or surviving domestic partner. 861.21(1)(b)(b) “Home” means any dwelling in which the decedent had an interest and that at the time of the decedent’s death the surviving spouse or surviving domestic partner occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse or surviving domestic partner. “Home” includes a house, a mobile home, a manufactured home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse or surviving domestic partner and a building used in part for a dwelling and in part for commercial or business purposes. “Home” includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under sub. (5). 861.21(2)(2) Decedent’s property interest in home. Subject to subs. (4) and (5), if a married decedent or decedent in a domestic partnership has a property interest in a home, the decedent’s entire interest in the home shall be assigned to the surviving spouse or surviving domestic partner if the surviving spouse or surviving domestic partner petitions the court requesting such a distribution and if a governing instrument does not provide a specific transfer of the decedent’s interest in the home to someone other than the surviving spouse or surviving domestic partner. The surviving spouse or surviving domestic partner shall file the petition within 6 months after the decedent’s death, unless the court extends the time for filing. 861.21(4)(4) Payment by surviving spouse or surviving domestic partner. The court shall assign the interest in the home under sub. (2) to the surviving spouse or surviving domestic partner upon payment of the value of the decedent’s interest in the home that does not pass to the surviving spouse or surviving domestic partner under intestacy or under a governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse or surviving domestic partner may use assets due him or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court extends the time, the surviving spouse or surviving domestic partner shall have one year from the decedent’s death to pay the value of the assigned interest. 861.21(5)(5) Severance of home from surrounding land. On petition of the surviving spouse or surviving domestic partner or of any interested person that part of the land is not necessary for dwelling purposes and that it would be inappropriate to assign all of the surrounding land as the home under sub. (2), the court may set off for the home as much of the land as is necessary for a dwelling. In determining how much land should be set off, the court shall take into account the use and marketability of the parcels set off as the home and the remaining land. 861.31861.31 Allowance to family during administration. 861.31(1m)(1m) The court may, without notice or on such notice as the court directs, order payment by the personal representative or special administrator of an allowance as the court determines necessary or appropriate for the support of the surviving spouse or surviving domestic partner and any minor children of the decedent during the administration of the estate. The court shall consider the size of the probate estate, other resources available for support, the existing standard of living, and any other factors it considers relevant. 861.31(2)(2) The court may order that an allowance be made to the spouse or surviving domestic partner for support of the spouse or surviving domestic partner and any minor children of the decedent, or that separate allowances be made to the spouse or surviving domestic partner and to the minor children of the decedent or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse or surviving domestic partner, the court may order that an allowance be made to the minor children of the decedent or to their guardian, if any. 861.31(3)(3) The initial order for support may not exceed one year but may be extended for additional periods of not to exceed one year at a time, and is subject to revision or termination at any time by further order of the court. 861.31(4)(4) The court may order that the allowance be charged against income or principal, either as an advance or otherwise, but the court may not order that an allowance for support of minor children of the decedent be charged against the income or principal interest of the surviving spouse or surviving domestic partner. The court may order that the allowance for support of the surviving spouse or surviving domestic partner, not including any allowance for support of minor children of the decedent, be applied in satisfaction of any of the following: 861.31(4)(b)(b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02. 861.31 AnnotationWidow’s allowances and the IRC. Miller, 54 MLR 193.
861.33861.33 Selection of personalty by surviving spouse or surviving domestic partner. 861.33(1)(a)(a) Subject to this section, in addition to all allowances and distributions, the surviving spouse or surviving domestic partner may file with the court a written selection of the following personal property, which shall then be transferred to the spouse or domestic partner by the personal representative: 861.33(1)(a)1.1. Wearing apparel and jewelry held for personal use by the decedent or the surviving spouse or surviving domestic partner; 861.33(1)(a)4.4. Other tangible personalty not used in trade, agriculture or other business, not to exceed $3,000 in inventory value. 861.33(1)(b)(b) The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse or surviving domestic partner may in every case select the normal household furniture, furnishings, and appliances necessary to maintain the home. For this purpose antiques, family heirlooms, and collections that are specifically bequeathed are not classifiable as normal household furniture or furnishings. 861.33(2)(2) If it appears that claims may not be paid in full, the court may, upon petition of any creditor, limit the transfer of personalty to the spouse under this section to items not exceeding $5,000 in aggregate inventory value until the claims are paid in full or the court otherwise orders, or the court may require the spouse to retransfer property in excess of $5,000 or, at the option of the spouse, pay the excess in value over this amount. 861.33(3)(3) The surviving spouse may select items not specifically bequeathed of the type specified under sub. (1) (a) 4. exceeding in value the $3,000 limit or obtain the transfer of items exceeding the limit set by the court under sub. (2), by paying to the personal representative the excess of inventory value over the respective limit. 861.33(4)(4) The personal representative has power, without court order, to execute appropriate documents to effect transfer of title to any personal property the spouse selects under this section. A person may not question the validity of the documents of transfer or refuse to accomplish the transfer on the grounds that the personal representative is also the surviving spouse of the decedent. 861.35861.35 Special allowance for support of spouse or domestic partner and support and education of minor children. 861.35(1m)(1m) If the decedent is survived by a spouse, domestic partner, or by minor children, the court may order an allowance for the support and education of each minor child until he or she reaches a specified age, not to exceed 18, and for the support of the spouse or domestic partner. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse or domestic partner, the court also may allot directly to the minor children household furniture, furnishings, and appliances. The court may not order an allowance under this section if any of the following applies: 861.35(1m)(a)(a) The decedent has amply provided for each minor child and for the spouse or domestic partner by the transfer of probate or nonprobate assets, or support and education have been provided for by any other means. 861.35(1m)(b)(b) In the case of minor children, the surviving spouse or surviving domestic partner is legally responsible for support and education and has ample means to provide them in addition to his or her own support. 861.35(1m)(c)(c) In the case of the surviving spouse or surviving domestic partner, he or she has ample means to provide for his or her support. 861.35(2)(2) The court may set aside property to provide an allowance and may appoint a trustee to administer the property, subject to the continuing jurisdiction of the court. If a child dies or reaches the age of 18, or if at any time the property held by the trustee is no longer required for the support of the spouse or domestic partner or the support and education of the minor child, any remaining property is to be distributed by the trustee as the court orders in accordance with the terms of the decedent’s will or to the heirs of the decedent in intestacy or to satisfy unpaid claims of the decedent’s estate. 861.35(3)(3) In making an allowance under this section, the court shall consider all of the following: 861.35(3)(a)(a) The effect on claims under s. 859.25. The court shall balance the needs of the spouse, domestic partner, or minor children against the nature of the creditors’ claims in setting the amount allowed under this section. 861.35(3)(e)(e) Whether the provisions of a marital property agreement will create a hardship for the surviving spouse. 861.35(3)(f)(f) Any other factors that the court considers relevant. 861.35(4)(4) The court may order that the allowance to the surviving spouse or surviving domestic partner, not including any allowance for the support and education of minor children, be applied in satisfaction of any of the following: 861.35(4)(a)(a) Any entitlement of the surviving spouse or surviving domestic partner under s. 853.12. 861.41861.41 Exemption of property to be assigned to surviving spouse or surviving domestic partner. 861.41(1)(1) After the amount of claims against the estate has been ascertained, the surviving spouse or surviving domestic partner may petition the court to set aside as exempt from the claims of creditors under s. 859.25 (1) (h) an amount of property reasonably necessary for the support of the spouse or domestic partner, not to exceed $10,000 in value, if it appears that the assets are insufficient to pay all claims and allowances and still leave the surviving spouse or surviving domestic partner such an amount of property in addition to selection and allowances. 861.41(2)(2) The court shall grant the petition if it determines that an assignment ahead of creditors is reasonably necessary for the support of the spouse or domestic partner. In determining the necessity and the amount of property to be assigned, the court must take into consideration the availability of a home to the surviving spouse or surviving domestic partner and all other assets and resources available for support. 861.43861.43 Authority and powers of conservator, guardian or agent. A conservator, guardian or guardian ad litem of the spouse or of a child of the decedent, or an agent of the spouse or of a child of the decedent acting under a power of attorney, may on behalf of the spouse or child exercise any of the rights, apply for any of the allowances or make any of the selections that apply to the spouse or child under this subchapter. 861.43 HistoryHistory: 1997 a. 188.
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Chs. 851-882, Probate
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