History: 1983 a. 186
; 1985 a. 37
Protection of trustees dealing with spouses. 766.575(1)(b)
“Governing instrument" means the contract or other instrument pursuant to which a trustee has possession or control of property. The term includes, in the case of trustees whose rights, duties and responsibilities are fixed by court order or statute or both, the court order and the applicable statutory provisions as modified by any court order, as they would apply if this chapter had not been enacted.
“Notice of claim" means a written notice, by or on behalf of a spouse, former spouse, surviving spouse or person claiming under a deceased spouse's disposition at death, that the person claims to be entitled to property in the trustee's possession or control, specifying the portion of property to which the claim relates.
“Property" includes, in addition to the meaning given under s. 766.01 (15)
, any proceeds of property, any income earned on property or derived from property and any income or proceeds derived from proceeds or income previously received and reinvested.
Except as provided in sub. (3)
, in a court order or in the terms of a trust, the classification of property in the possession or control of a trustee shall not affect the trustee's right and duty to administer, manage and distribute the property in accordance with the terms of the governing instrument and the trustee may rely on and act in accordance with those terms.
If at least 5 business days before distributing property in accordance with the terms of a governing instrument a trustee has received at its principal business office a notice of claim, the trustee shall notify the persons to whom the property would otherwise be distributed, whether as a matter of right or in the exercise of any discretion granted under the governing instrument, of the receipt of the notice of claim and shall suspend the distribution of the portion of property to which the claim relates for 14 business days.
If within 14 business days after receiving the notice of claim the trustee receives, as purporting to support the claim, a decree, marital property agreement or proof that a legal action has been commenced, including a copy of an election filed pursuant to s. 861.08 (1)
, to establish the validity of the claim, the trustee shall suspend distribution of the portion of the property to which the claim relates pending resolution of the validity of the claim.
If documentation purporting to support the claim is not submitted as described in par. (b)
, the trustee may proceed to distribute the property as if the notice of claim had not been received.
A trustee is not liable to any person for any claim for damages as a result of distribution of property in accordance with the terms of the governing instrument prior to its receipt of a notice of claim under sub. (3)
or for any damages claimed as a result of suspension of distribution under this section. A person who files a notice of claim under sub. (3)
is not entitled to recover fees or expenses charged against such property by the trustee prior to or in connection with the establishment of the validity of his or her claim. A trustee shall pay interest or earnings which accrue during the suspension of any action under sub. (3)
Marital property agreements. 766.58(1)(1)
A marital property agreement shall be a document signed by both spouses. Only the spouses may be parties to a marital property agreement. A marital property agreement is enforceable without consideration.
A marital property agreement may not adversely affect the right of a child to support.
Rights in and obligations with respect to any of either or both spouses' property whenever and wherever acquired or located.
Management and control of any of either or both spouses' property.
Disposition of any of either or both spouses' property upon dissolution or death or upon the occurrence or nonoccurrence of any other event.
Modification or elimination of spousal support, except as provided in sub. (9)
Making a will, trust or other arrangement to carry out the marital property agreement.
Providing that upon the death of either spouse any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition. Any such provision in a marital property agreement is revoked upon dissolution of the marriage as provided in s. 767.375 (1)
. If a marital property agreement provides for the nontestamentary disposition of property, without probate, at the death of the 2nd spouse, at any time after the death of the first spouse the surviving spouse may amend the marital property agreement with regard to property to be disposed of at his or her death unless the marital property agreement expressly provides otherwise and except to the extent property is held in a trust expressly established under the marital property agreement.
Choice of law governing construction of the marital property agreement.
Any other matter affecting either or both spouses' property not in violation of public policy or a statute imposing a criminal penalty.
applies to transfers at death under a marital property agreement.
A marital property agreement may be amended or revoked only by a later marital property agreement.
Persons intending to marry each other may enter into a marital property agreement as if married, but the marital property agreement becomes effective only upon their marriage.
A marital property agreement executed before or during marriage is not enforceable if the spouse against whom enforcement is sought proves any of the following:
The marital property agreement was unconscionable when made.
That spouse did not execute the marital property agreement voluntarily.
Before execution of the marital property agreement, that spouse:
Did not receive fair and reasonable disclosure, under the circumstances, of the other spouse's property or financial obligations; and
Did not have notice of the other spouse's property or financial obligations.
Unless the marital property agreement expressly provides otherwise, a marital property agreement that classifies a deferred employment benefit plan or an individual retirement account as marital property does not affect the operation of s. 766.62 (5)
Unless the marital property agreement expressly provides otherwise, marital property agreement that classifies as marital property the noninsured spouse's interest in a policy that designates the other spouse as the owner and insured does not affect the operation of s. 766.61 (7)
. In this paragraph, “owner" has the meaning given in s. 766.61 (1) (a)
and “policy" has the meaning given in s. 766.61 (1) (c)
The issue of whether a marital property agreement is unconscionable is for the court to decide as a matter of law. In the event that legal counsel is retained in connection with a marital property agreement the fact that both parties are represented by one counsel or that one party is represented by counsel and the other party is not represented by counsel does not by itself make a marital property agreement unconscionable or otherwise affect its enforceability.
Modification or elimination of spousal support during the marriage may not result in a spouse having less than necessary and adequate support, taking into consideration all sources of support.
If a marital property agreement modifies or eliminates spousal support so as to make one spouse eligible for public assistance at the time of dissolution of the marriage or termination of the marriage by death, the court may require the other spouse or the other spouse's estate to provide support necessary to avoid that eligibility, notwithstanding the marital property agreement.
If the spouses agree in writing to arbitrate any controversies arising under this chapter or a marital property agreement, the arbitration agreement is enforceable under ch. 788
Married persons or persons intending to marry each other may record a marital property agreement in the county register of deeds office under s. 59.43 (1c) (r)
A provision of a document signed before the determination date by spouses or unmarried persons who subsequently married each other, which provision affects the property of either of them and is enforceable by either of them without reference to this chapter, is not affected by this chapter except as provided otherwise in a marital property agreement made after the determination date.
If a provision or an amendment to a provision in a document described under par. (a)
is intended to negate, apply or modify any right or obligation which may be acquired under 1983 Wisconsin Act 186
, 1985 Wisconsin Act 37
, or a community property system, the provision or amendment is enforceable after the determination date if the document was enforceable when executed or, if it is executed after April 4, 1984, either was enforceable when executed or would be enforceable if it were executed after the determination date.
This subsection does not affect a marital property agreement executed under s. 766.585
With respect to a provision of a marital property agreement that is effective upon or after dissolution of the marriage or termination of the marriage by death, any statute of limitations applicable to enforcement of the provision is tolled until dissolution of the marriage or termination of the marriage by death, respectively.
After the death of a spouse, no action concerning a marital property agreement may be brought later than 6 months after the inventory is filed under s. 858.01
. If an amended inventory is filed, the action may be brought within 6 months after the filing of the amended inventory if the action relates to information contained in the amended inventory that was not contained in a previous inventory.
The court may extend the 6-month period under par. (b)
for cause if a motion for extension is made within the applicable 6-month period.
Limitations on the effect of marital property agreements for state income tax purposes are set forth in ch. 71
Whether property agreements are inequitable under s. 767.255 (11) [now s. 767.61 (3) (L)] is discussed. Button v. Button, 131 Wis. 2d 84
, 388 N.W.2d 546
An annuity that transferred ownership from the owner to a “co-annuitant" on the owner's death was a joint account under s. 705.04 (1) and a contractual agreement that creates a nonprobate transfer under s. 705.20 (1). Both will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151
, 237 Wis. 2d 853
, 616 N.W.2d 118
No provision of sub. (3) or s. 705.20 permits parties to ignore ch. 854, or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will" provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes' Retirement System Annuity and Pension Board, 2006 WI 10
, 288 Wis. 2d 62
, 709 N.W.2d 360
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
A Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. Aug. 1999.
Marital property agreements before determination date. 766.585(1)(1)
After April 4, 1984, and before their determination date, spouses or unmarried persons who subsequently marry each other may execute a marital property agreement under s. 766.58
, which is intended to apply only after their determination date, to the same extent that persons may execute a marital property agreement under s. 766.58
after their determination date. The marital property agreement does not apply before the persons' determination date. Upon application, the marital property agreement has the same effect as if executed after the persons' determination date.
Notwithstanding the execution of the marital property agreement before the persons' determination date and notwithstanding the January 1, 1986, effective date of 1983 Wisconsin Act 186
and 1985 Wisconsin Act 37
, the law in effect on the date when the marital property agreement applies, not on the date of execution of the marital property agreement, applies to the execution and enforceability or other legal effect of the marital property agreement.
A document executed by spouses or unmarried persons who subsequently marry each other which is intended to apply in whole or in part before their determination date is governed by s. 766.58 (12)
History: 1985 a. 37
Statutory individual property classification agreement. 766.587(1)(a)(a)
Spouses may execute a statutory individual property classification agreement under this section to classify all the property of the spouses, including property presently owned and property acquired in the future but before the agreement terminates, as the individual property of the owner. Ownership of the property of the spouses is determined as if it were December 31, 1985. Except as provided in this section, s. 766.58
applies to an agreement under this section. Persons intending to marry each other may execute an agreement as if married, but the agreement becomes effective only upon their marriage. The form of the agreement is set forth in sub. (7)
If, while an agreement is in effect, spouses acquire property as a joint tenancy exclusively between themselves or as survivorship marital property, the property is classified as the individual property of the owners and is owned as a joint tenancy. If, while an agreement is in effect, spouses acquire property held in a form as provided under s. 766.60 (1)
, the property is classified as the individual property of the owners and is owned as a tenancy in common.
An agreement under this section is executed when signed by both spouses.
An agreement under this section may be executed on or after January 1, 1986. If executed before January 1, 1986, it is effective on January 1, 1986, or upon the marriage of the parties, whichever is later. If executed on or after January 1, 1986, it is effective when executed or upon the marriage of the parties, whichever is later.
An agreement under this section terminates on January 1, 1987. Termination does not affect the classification of property acquired before termination. Property acquired after termination is classified as provided under this chapter.
An agreement under this section is enforceable without the disclosure of a spouse's property or financial obligations to the other spouse.
(5) Effect on support and at divorce.
An agreement under this section does not affect the duty of support that spouses have to each other or the determination of property division under s. 767.61
or of maintenance payments under s. 767.56
(6) Rights of surviving spouse.
Notwithstanding the fact that an agreement under this section is in effect at, or has terminated before, the death of a spouse who is a party to the agreement, the surviving spouse may elect under s. 861.02
. For the purpose of the election, in addition to the property described in s. 851.055
, property acquired during marriage and after the determination date which would have been marital property but for the agreement is deferred marital property.
(7) Statutory individual property classification agreement form.
The following is the form for a statutory individual property classification agreement under this section:
NOTICE TO PERSONS WHO SIGN THIS AGREEMENT:
1. EFFECTIVE JANUARY 1, 1986, A NEW PROPERTY LAW, KNOWN AS THE MARITAL PROPERTY SYSTEM, GOVERNS THE PROPERTY RIGHTS OF MARRIED PERSONS IN WISCONSIN. UNDER THE MARITAL PROPERTY SYSTEM, EACH SPOUSE HAS A 50% OWNERSHIP INTEREST IN PROPERTY ACQUIRED DURING MARRIAGE DUE TO THE EFFORTS OF EITHER OR BOTH SPOUSES, SUCH AS WAGES, DEFERRED EMPLOYMENT BENEFITS, LIFE INSURANCE, INCOME FROM PROPERTY AND CERTAIN APPRECIATION OF PROPERTY. BY ENTERING INTO THIS AGREEMENT, YOU HAVE AGREED TO RELINQUISH YOUR RIGHTS TO AN AUTOMATIC OWNERSHIP INTEREST IN SUCH PROPERTY ACQUIRED DURING 1986.
2. CLASSIFICATION BY THIS AGREEMENT OF YOUR AND YOUR SPOUSE'S PROPERTY AS THE INDIVIDUAL PROPERTY OF THE OWNER MAY AFFECT YOUR ACCESS TO CREDIT, THE ACCUMULATION OF AND THE MANAGEMENT AND CONTROL OF PROPERTY BY YOU DURING YOUR MARRIAGE AND THE AMOUNT OF PROPERTY YOU HAVE TO DISPOSE OF AT YOUR DEATH.
3. THIS AGREEMENT TERMINATES ON JANUARY 1, 1987. IF YOU WISH TO CHANGE THIS AGREEMENT BEFORE JANUARY 1, 1987, OR IF YOU WISH TO CONTINUE TO CLASSIFY YOUR PROPERTY AS PROVIDED IN THIS AGREEMENT AFTER IT TERMINATES ON JANUARY 1, 1987, YOU MAY DO SO BY EXECUTING A NEW MARITAL PROPERTY AGREEMENT THAT COMPLIES WITH SECTION 766.58, WISCONSIN STATUTES.
4. THIS AGREEMENT DOES NOT AFFECT RIGHTS AT DIVORCE.
5. IN GENERAL, THIS AGREEMENT IS NOT BINDING ON CREDITORS UNLESS THE CREDITOR IS FURNISHED A COPY OF THE AGREEMENT BEFORE CREDIT IS EXTENDED. IN ADDITION, THIRD PARTIES OTHER THAN CREDITORS MIGHT NOT BE BOUND BY THIS AGREEMENT UNLESS THEY HAVE ACTUAL KNOWLEDGE OF THE TERMS OF THE AGREEMENT.
6. THIS AGREEMENT MAY AFFECT YOUR TAXES.
7. THIS AGREEMENT MAY AFFECT ANY PREVIOUS MARRIAGE AGREEMENT ENTERED INTO BY YOU AND YOUR SPOUSE.
8. THIS AGREEMENT DOES NOT ALTER THE LEGAL DUTY OF SUPPORT THAT SPOUSES HAVE TO EACH OTHER OR THAT A SPOUSE HAS TO HIS OR HER CHILDREN.
9. BOTH SPOUSES MUST SIGN THIS AGREEMENT. IF SIGNED BEFORE JANUARY 1, 1986, IT IS EFFECTIVE ON JANUARY 1, 1986, OR THE DATE THE PARTIES MARRY, WHICHEVER IS LATER. IF SIGNED ON OR AFTER JANUARY 1, 1986, IT IS EFFECTIVE ON THE DATE SIGNED OR THE DATE THE PARTIES MARRY, WHICHEVER IS LATER.