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.
(7p) Unilateral statement.
Income attributable to all or specified property other than marital property, with respect to which a spouse has executed under s. 766.59
a statement unilaterally designating that income as his or her individual property, is individual property.
(8) Rights in property acquired before determination date.
Except as provided otherwise in this chapter, the enactment of this chapter does not alter the classification and ownership rights of property acquired before the determination date or the classification and ownership rights of property acquired after the determination date in exchange for or with the proceeds of property acquired before the determination date.
(9) Treatment of property acquired before the determination date.
Except as provided otherwise in this chapter and except to the extent that it would affect the spouse's ownership rights in the property existing before the determination date, during marriage the interest of a spouse in property owned immediately before the determination date is treated as if it were individual property.
Spouses may reclassify their property by gift, conveyance, as defined in s. 706.01 (4)
, signed by both spouses, marital property agreement, written consent under s. 766.61 (3) (e)
or unilateral statement under s. 766.59
and, if the property is a security, as defined in s. 705.21 (11)
, by an instrument, signed by both spouses, which conveys an interest in the security. If a spouse gives property to the other spouse and intends at the time the gift is made that the property be the individual property of the donee spouse, the income from the property is the individual property of the donee spouse unless a contrary intent of the donor spouse regarding the classification of income is established.
Marital property presumptions and tracing principals are applied. In Matter of Estate of Lloyd, 170 Wis. 2d 240
, 487 N.W.2d 644
(Ct. App. 1992).
The marital property law does not reduce a non-negligent mother's wrongful death recovery for the father's contributory negligence in their child's death. Smith v. State Farm Fire & Casualty Co. 192 Wis. 2d 322
, 531 N.W.2d 376
(Ct. App. 1995).
A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank, 204 Wis. 2d 426
, 555 N.W.2d 655
(Ct. App. 1996), 95-1850
The termination under sub. (3) of a marital property interest in pension benefits did not prevent the application of the equitable principle that a murderer should not profit from the crime. The trial court acted properly in imposing a constructive trust on the decedent's marital property interest in the murderer's pension benefits. Estate of Hackl v. Hackl, 231 Wis. 2d 43
, 604 N.W.2d 579
(Ct. App. 1999), 99-0499
Irreconcilable differences: Income from separate property under divorce law and under Wisconsin's marital property act. Bascom. 70 MLR 41 (1986).
The effects of the Wisconsin marital property act on trusts: Whose property is it? Kusky, WBB March, 1985.
Management and control of property of spouses. 766.51(1)(1)
A spouse acting alone may manage and control:
That spouse's property that is not marital property.
Except as provided in subs. (2)
, marital property held in that spouse's name alone or not held in the name of either spouse.
Marital property held in the names of both spouses in the alternative, including marital property held in a form designating the holder by the words “(name of one spouse) or (name of other spouse)".
A policy of insurance if that spouse is designated as the owner on the records of the policy issuer.
Any right of an employee under a deferred employment benefit plan that accrues as a result of that spouse's employment.
A claim for relief vested in that spouse by other law.
Notwithstanding any provision in this section except par. (b)
, for the purpose of obtaining an extension of credit for an obligation described under s. 766.55 (2) (b)
, a spouse acting alone may manage and control all of the marital property.
Unless the spouse acting alone may otherwise under this section manage and control the property, the right to manage and control marital property under this subsection does not include the right to manage and control marital property described in s. 766.70 (3) (a)
or the right to assign, create a security interest in, mortgage or otherwise encumber marital property.
Spouses may manage and control marital property held in the names of both spouses other than in the alternative only if they act together.
The right to manage and control marital property transferred to a trust is determined by the terms of the trust.
The right to manage and control marital property permits gifts of that property, subject to remedies under this chapter.
The right to manage and control marital property does not determine the classification of property of the spouses and does not rebut the presumption under s. 766.31 (2)
The enactment of this chapter does not affect the right to manage and control any property of either or both spouses acquired before the determination date.
A court may appoint a conservator or guardian under ch. 54
to exercise a disabled spouse's right to manage and control marital property.
If an executory contract for the sale of property is entered into by a person having the right of management and control of the property, the rights of all persons then having or thereafter acquiring an interest in the property under this chapter are subject to the terms of the executory contract. This subsection applies to contracts entered into before or after the determination date.
At the death of a spouse if property described under s. 766.70 (3) (a)
is held by either spouse, but not in the names of both spouses, such property may be subject to the management and control of the holding spouse as provided under s. 857.015
Gifts of marital property to 3rd persons.
A spouse acting alone may give to a 3rd person marital property that the spouse has the right to manage and control only if the value of the marital property given to the 3rd person does not aggregate more than either $1,000 in a calendar year, or a larger amount if, when made, the gift is reasonable in amount considering the economic position of the spouses. Any other gift of marital property to a 3rd person is subject to s. 766.70 (6)
unless both spouses act together in making the gift. Under this section and for the purpose of s. 766.70 (6) (a)
, in the case of a gift of marital property by a spouse to a 3rd person in which the donor spouse has retained an interest, the gift shall be valued at the full value of the entire transfer of marital property, regardless of any retained interest or interest donated to the other spouse. For purposes of this section only, a gift of a life insurance policy by a spouse to a 3rd person shall be valued at the amount payable under the policy if the insured died at the time the gift was made.
History: 1983 a. 186
; 1985 a. 37
Obligations of spouses. 766.55(1)(1)
An obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, is presumed to be incurred in the interest of the marriage or the family. A statement separately signed by the obligated or incurring spouse at or before the time the obligation is incurred stating that the obligation is or will be incurred in the interest of the marriage or the family is conclusive evidence that the obligation to which the statement refers is an obligation in the interest of the marriage or family, except that the existence of that statement does not affect any interspousal right or remedy.
After the determination date all of the following apply:
A spouse's obligation to satisfy a duty of support owed to the other spouse or to a child of the marriage may be satisfied only from all marital property and all other property of the obligated spouse.
An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse.
An obligation incurred by a spouse that is recoverable under s. 46.27 (7g)
, 2017 stats., or s. 49.496
, or 49.849
may be satisfied from all property that was the property of that spouse immediately before that spouse's death.