Chapter 861

861.31 Annotation Widow’s allowances and the IRC. Miller, 54 MLR 193.

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

861.33(1) (1) 

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)2. 2. Automobile;

861.33(1)(a)3. 3. Household furniture, furnishings and appliances; and

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.

861.33 History History: 1973 c. 233; 1983 a. 192; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.

861.33 Annotation This section is constitutional. In Matter of Estate of Eisenberg, 90 Wis. 2d 620, 280 N.W.2d 359 (Ct. App. 1979).

861.35 861.35 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)(b) (b) The size of the estate.

861.35(3)(c) (c) Other resources available for support.

861.35(3)(d) (d) The existing standard of living.

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.

861.35(4)(b) (b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02 (1).

861.35 History History: 1971 c. 213 s. 5; 1983 a. 186; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.

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

861.41 861.41 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.

861.41 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393 s. 53; 1997 a. 188; 2009 a. 28.

861.43 861.43 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 History History: 1997 a. 188.