Estate planning under Wisconsin's marital property act. Erlanger, Hughes and Weisberger, WBB February, 1986.
In this chapter:
“Acquiring" property includes reducing indebtedness on encumbered property and obtaining a lien on or security interest in property.
“Appreciation" means a realized or unrealized increase in the value of property.
Except as provided in pars. (b)
, “credit" means the right granted by a creditor to defer payment of a debt, incur debt and defer its payment or purchase property or services and defer payment for the property or services.
Except as provided in pars. (b)
, “creditor" means a person that regularly extends credit.
“Decree" means a judgment or other order of a court.
“Deferred employment benefit" means a benefit from a deferred employment benefit plan.
“Deferred employment benefit plan" means a plan, fund, program or other arrangement under which compensation or benefits from employment are expressly, or as a result of surrounding circumstances, deferred to a later date or the happening of a future event. “Deferred employment benefit plan" includes but is not limited to a pension, profit sharing or stock-bonus plan, an employee stock-ownership or stock-purchase plan, a savings or thrift plan, an annuity plan, a qualified bond-purchase plan, a self-employed retirement plan, a simplified employee pension and a deferred compensation agreement or plan.
“Deferred employment benefit plan" does not include life, health, accident or other insurance or a plan, fund, program or other arrangement providing benefits similar to insurance benefits, except to the extent that benefits under the plan:
Have a present value that is immediately realizable in cash at the option of the employee;
Represent a right to compensation for loss of income during disability; or
Represent a right to payment of expenses incurred before time of valuation.
“Determination date" means the last to occur of the following:
12:01 a.m. on the date that both spouses are domiciled in this state.
“Disposition at death" means transfer of property by will, intestate succession, nontestamentary transfer or other means that takes effect at the transferor's death.
“Dissolution" means termination of a marriage by a decree of dissolution, divorce, annulment or declaration of invalidity or entry of a decree of legal separation or separate maintenance. The term does not include a decree resulting from an action available under ch. 767
which is not an annulment, a divorce or a legal separation.
“During marriage" means a period in which both spouses are domiciled in this state that begins at the determination date and ends at dissolution or at the death of a spouse.
Except as provided in pars. (b)
, property is “held" by a person only if a document of title to the property is registered, recorded or filed in a public office in the name of the person or a writing that customarily operates as a document of title to the type of property is issued for the property in the person's name.
An account is “held" by the person who, by the terms of the account, has a present right, subject to request, to payment from the account other than as an agent. Accounts that are so “held" include accounts under s. 705.01 (1)
and brokerage accounts.
An uncertificated security, as defined under s. 408.102 (1) (r)
, is “held" by the person identified as the registered owner of the security upon books maintained for that purpose by or on behalf of the issuer. If the registered owner of an uncertificated security is identified as a brokerage account, the security is “held" as provided under par. (b)
“Income" means wages, salaries, commissions, bonuses, gratuities, payments in kind, deferred employment benefits, proceeds, other than death benefits, of any health, accident or disability insurance policy or of any plan, fund, program or other arrangement providing benefits similar to those forms of insurance, other economic benefits having value attributable to the effort of a spouse, dividends, dividends on life insurance and annuity contracts to the extent that the aggregate of the dividends exceeds the aggregate premiums paid, interest, income distributed from trusts and estates, and net rents and other net returns attributable to investment, rental, licensing or other use of property, unless attributable to a return of capital or to appreciation.
“Management and control" means the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, institute or defend a civil action regarding or otherwise deal with property as if it were property of an unmarried person.
A person has “notice" of a fact if the person has knowledge of it, receives a notification of it, or has reason to know that it exists from the facts and circumstances known to the person.
“Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including digital property, as defined in s. 711.03 (10)
“Written consent" means a document signed by a person against whose interests it is sought to be enforced.
From Common Law Property to Community Property: Wisconsin's Marital Property Act Four Years Later. Erlanger and Weisberger. 1990 WLR 769.
After this chapter first applies to spouses, it continues to apply to spouses during marriage. Section 766.75
applies after a dissolution. If at the time of the death of a spouse both spouses are domiciled in this state, the provisions of this chapter which have application after the death of a spouse apply.
The cessation of the application of this chapter because a spouse is no longer domiciled in this state does not by itself affect any property, right, interest or remedy acquired under this chapter by either spouse or by a 3rd party or the satisfaction of any obligation incurred by a spouse under this chapter.
applies to a spouse in this state whether or not that person is domiciled in this state.
Any property, right, interest or remedy of a spouse or 3rd party acquired or property that is available to satisfy an obligation incurred on or after January 1, 1986, and before May 3, 1988, shall not be adversely affected by 1987 Wisconsin Act 393
, sections 10
This chapter does not affect the property available to satisfy an obligation incurred by a spouse that is attributable to an obligation arising when one or both spouses are not domiciled in this state or to an act or omission occurring when one or both spouses are not domiciled in this state.
History: 1987 a. 393
; 1991 a. 301
Responsibility between spouses. 766.15(1)(1)
Each spouse shall act in good faith with respect to the other spouse in matters involving marital property or other property of the other spouse. This obligation may not be varied by a marital property agreement.
Management and control by a spouse of that spouse's property that is not marital property in a manner that limits, diminishes or fails to produce income from that property does not violate sub. (1)
History: 1983 a. 186
Intentional misrepresentation is a breach of the duty of good faith for which the exclusive pre-divorce remedy is s. 766.70 (1). Gardner v. Gardner, 175 Wis. 2d 420
, 499 N.W.2d 266
(Ct. App. 1993).
Variation by marital property agreement. 766.17(2)
Section 859.18 (6)
governs the effect of a marital property agreement upon property available for satisfaction of obligations after the death of a spouse.
History: 1983 a. 186
; 1985 a. 37
Classification of property of spouses. 766.31(1)(1)
All property of spouses is marital property except that which is classified otherwise by this chapter and that which is described in sub. (8)
All property of spouses is presumed to be marital property.
(3) Spouse's interest in marital property.
Each spouse has a present undivided one-half interest in each item of marital property, subject to all of the following:
Terminable interest in deferred employment benefit plan.
As provided in s. 766.62 (5)
, the marital property interest of the nonemployee spouse in a deferred employment benefit plan or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan terminates at the death of the nonemployee spouse if he or she predeceases the employee spouse.
Division based on aggregate value at death. 766.31(3)(b)1.
Spouses may provide in a marital property agreement that at the death of a spouse some or all of their marital property will be divided based on aggregate value rather than divided item by item. However, at the death of a spouse, a marital property agreement is not necessary for a division of marital property that is not item by item.
The surviving spouse and the successor in interest to the decedent's share of marital property may enter into an agreement providing that some or all of the marital property in which each has an interest will be divided based on aggregate value rather than divided item by item.
The surviving spouse and a distributee who is a successor in interest to all or part of the decedent's one-half interest in marital property may petition the court to approve an exchange of interests in the marital property authorized under subd. 1.
, but court approval of the exchange is not required for the agreement under subd. 1.
to be effective. If the court approves the exchange, the surviving spouse and the distributee shall exchange their respective interests in 2 or more items of marital property and distribute the items in a manner to conform with the exchange. The exchange shall:
Occur before the final distribution of the assets under the governing instrument;
Be composed of items which are fairly representative of the appreciation and depreciation that has occurred since the date of death;
Be composed of items having a fair market value at the time of exchange equal to what would have been distributed had no exchange request been made, including any money used in the exchange; and
Be reported with a written description of each item, its basis and its fair market value at the time of exchange in the manner prescribed by the department of revenue.
(4) Classification of income.
Except as provided under subs. (7) (a)
, income earned or accrued by a spouse or attributable to property of a spouse during marriage and after the determination date is marital property.
(5) Transfer to a trust.
The transfer of property to a trust does not by itself change the classification of the property.
(6) Property owned at determination date. 766.31(6)(a)(a)
Date of marriage same as determination date.
If the date of marriage is the same as the determination date, the property owned at the determination date is individual property of the owning spouse.
Date of marriage prior to determination date.
If the date of marriage precedes the determination date, the property owned at the determination date is not classified by this chapter but is subject to all of the following:
govern property acquired while the spouses were married but before the determination date if the property would have been individual property had it been acquired after the determination date.
and s. 861.02
govern property acquired while the spouses were married but before the determination date if the property would have been marital property had it been acquired after the determination date.
(7) Individual property after determination date.
Property acquired by a spouse during marriage and after the determination date is individual property if acquired by any of the following means:
By gift during lifetime or by a disposition at death by a 3rd person to that spouse and not to both spouses. A distribution of principal or income from a trust created by a 3rd person to one spouse is the individual property of that spouse unless the trust provides otherwise.
In exchange for or with the proceeds of other individual property of the spouse.
From appreciation of the spouse's individual property except to the extent that the appreciation is classified as marital property under s. 766.63
By a decree, marital property agreement or reclassification under sub. (10)
designating it as the individual property of the spouse.
As a recovery for damage to property under s. 766.70
, except as specifically provided otherwise in a decree or marital property agreement.
As a recovery for personal injury except for the amount of that recovery attributable to expenses paid or otherwise satisfied from marital property and except for the amount attributable to loss of income during marriage.
(7m) Personal injury damages; lost earnings.
To the extent that marital property includes damages for loss of future income arising from a personal injury claim of a surviving spouse, the surviving spouse is entitled to receive as individual property that portion of the award that represents an income substitute after the death of the other spouse.