The employer created the plan or contract for the exclusive benefit of the employer, if self-employed, or of some or all of the employees, or their dependents or beneficiaries and that plan or contract requires the employer or employees or both to make contributions for the purpose of distributing to the employer, if self-employed, the employees, or their dependents or beneficiaries, the earnings or the principal or both of a trust, annuity, insurance or other benefit created under the plan or contract and makes it impossible, at any time prior to the satisfaction of all liabilities with respect to beneficiaries under a trust created by the plan or contract, for any part of the principal or income of the trust to be used for or diverted to purposes other than for the exclusive benefit of those beneficiaries.
The plan or contract may permit the income created from personal property held in a trust created under the plan or contract to accumulate in accordance with the terms of the trust. The trust may continue until it accomplishes its purposes. The trust is not invalid as violating the rule against perpetuities or any law against perpetuities or the suspension of the power of alienation of title to property.
The benefits of this exemption with respect to the assets held or amounts payable under or traceable to an owner-dominated plan for or on behalf of a debtor who is an owner-employee shall be limited to the extent reasonably necessary for the support of the debtor and the debtor's dependents.
This exemption does not apply to an order of a court concerning child support, family support or maintenance payments, or to any judgment of annulment, divorce or legal separation.
“Employer" includes a group of employers creating a combined plan or contract for the benefit of their employees or the beneficiaries of those employees.
“Owner-dominated plan" means any plan or contract that meets the requirements of subd. 2.
and under which 90 percent or more of the present value of the accrued benefits or 90 percent or more of the aggregate of the account is for the benefit of one or more individuals who are owner-employees. For purposes of this definition, the accrued benefits or account of an owner-employee under a plan or contract shall include the accrued benefits or account of the spouse, any ancestor or lineal descendant, whether by blood or by adoption, or the spouse of such a lineal descendant, of the owner-employee under the same plan or contract.
“Owner-employee" means any individual who owns, directly or indirectly, the entire interest in an unincorporated trade or business, or 50 percent or more of the combined voting of all classes of stock entitled to vote or the total value of shares of all classes of stock of a corporation, or 50 percent or more of the capital interest or profits interest of a partnership or limited liability company.
Depository accounts in the aggregate value of $5,000, but only to the extent that the account is for the debtor's personal use and is not used as a business account.
Private property from execution against municipalities.
All private property shall be exempt from seizure and sale upon any execution or other process issued to enforce any judgment or decree of any court that has been rendered against any county, town, city, village, technical college district or school district in this state.
All money received by a person, a resident of this state, as pension, compensation, government insurance, or adjusted compensation, back pension, compensation or insurance from the U.S. government on account of military or naval service, and all other money received by a person on account of military or naval service from the U.S. government administered by the U.S. department of veterans affairs, whether the same is in the actual possession of such person, on deposit, or loaned.
College savings accounts.
An interest in a college savings account under s. 224.50
Property traceable to property that would be exempt under this section in the form of cash proceeds or otherwise is not exempt unless expressly provided for in this section.
A resident is entitled to the exemptions provided by this section. A nonresident is entitled to the exemptions provided by the law of the jurisdiction of his or her residence.
A debtor shall affirmatively claim an exemption or select specific property in which to claim an exemption. The debtor may make the claim at the time of seizure of property or within a reasonable time after the seizure, but shall make the claim prior to the disposition of the property by sale or by court order. Exempt property is not exempt unless affirmatively claimed as exempt. With respect to property partially exempt under this section, the claiming of an exemption includes the process of selection required of the debtor. The debtor or a person acting on the debtor's behalf shall make any required affirmative claim, either orally or in writing, to the creditor, the creditor's attorney or the officer seeking to impose a lien by court action upon the property in which the exemption is claimed. A debtor waives his or her exemption rights by failing to follow the procedure under this paragraph. A contractual waiver of exemption rights by any debtor before judgment on the claim is void. The court, in making a determination as to the extent property is reasonably necessary for the support of the debtor and the debtor's dependents, is not limited to the standard of living to which the debtor and the debtor's dependents have become accustomed. The court shall consider the amount and use of any income of any person claimed as a dependent when determining if that person is a dependent of a debtor.
Notwithstanding sub. (13)
, this subsection does not apply to any of the following:
Retirement benefits and allowances from retirement systems of 1st class cities exempt under s. 62.63 (4)
(7) Valuation of property.
The value of any property subject to exemption under this section shall be determined by agreement of the parties or by a commercially reasonable manner.
(8) Marital property rights.
Each spouse is entitled to and may claim the exemptions under this section. If the property exempt under this section is limited to a specified maximum dollar amount, each spouse is entitled to one exemption. That exemption is limited to the specified maximum dollar amount, which may be combined with the other spouse's exemption in the same property or applied to different property included under the same exemption. The exemption under sub. (3) (h)
may not be combined with the other spouse's exemption under sub. (3) (h)
and applied to the same property.
(9) Partially exempt property.
In the case of property that is partially exempt, the debtor or any person acting on the debtor's behalf is entitled to claim the exempt portion of property. The exempt portion claimed shall be set apart for the debtor, or for the debtor's dependents, and the nonexempt portion shall be subject to a creditor's claim. If partially exempt property is indivisible, the property may be sold and the exempt value of the property paid to the debtor or the debtor's dependents. Any proceeds paid to the debtor or to the debtor's dependents shall be exempt while held by the debtor or the debtor's dependents as cash or in a depository account.
(10) Fraudulent transfers.
A conveyance or transfer of wholly exempt property shall not be considered a fraudulent conveyance or transfer. Property that is not totally exempt in value under this section may be subject to a fraudulent transfer action under ch. 242
to set aside that transfer to the extent that the property's value is not exempt under this section. If a court is required to satisfy the claim of a creditor and if that relief is demanded, the court may determine the manner of dividing fraudulently transferred property into exempt and nonexempt portions, or may order the sale of the whole property and an accounting of the exempt portion. Any or all of the exemptions granted by this section may be denied if, in the discretion of the court having jurisdiction, the debtor procured, concealed or transferred assets with the intention of defrauding creditors.
(11) Consumer credit transaction exemptions.
The debtor may claim either the exemptions listed in s. 425.106
or the exemptions under this section for an obligation arising from a consumer credit transaction.
(12) Limitations on exemptions.
No property otherwise exempt may be claimed as exempt in any proceeding brought by any person to recover the whole or part of the purchase price of the property or against the claim or interest of a holder of a security interest, land contract, condominium or homeowners association assessment or maintenance lien or both, mortgage or any consensual or statutory lien.
(13) Applicability to other property.
apply to the following exempt property except as otherwise provided by law:
Retirement benefits and allowances from retirement systems of 1st class cities exempt under s. 62.63 (4)
History: 1971 c. 154
; 1971 c. 211
; 1971 c. 229
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); 1975 c. 94
s. 91 (3)
, (5); 1975 c. 199
; 1975 c. 359
; Stats. 1975 s. 815.18; 1979 c. 110
s. 60 (4)
; 1979 c. 191
; 1985 a. 37
; 1989 a. 56
; 1991 a. 39
; 1993 a. 112
; 1995 a. 27
; 1997 a. 39
; 1999 a. 9
; 1999 a. 150
; 1999 a. 162
; 2001 a. 10
; 2003 a. 138
; 2005 a. 22
; 2009 a. 80
; 2011 a. 32
; 2015 a. 237
; 2017 a. 59
; 2017 a. 207
Sub. (31) [now sub. (3) (j)] does not violate Art. I, s. 17. North Side Bank v. Gentile, 129 Wis. 2d 208
, 385 N.W.2d 133
So long as a debtor initially files claimed exemptions within a reasonable time after seizure, and prior to disposition, nothing prohibits a debtor from amending the claim. Tralmer Sales & Service, Inc. v. Erickson, 186 Wis. 2d 549
, 521 N.W.2d 182
(Ct. App. 1994).
The presence of a beneficiary-specific exemption in s. 16.641 does not mean that the general exemption in sub. (3) (p) is ambiguous. The general exemption statute is succinct and straightforward. Subsection (3) (p) applies to an account owner's interest in an s. 16.641 college savings account. In re: Bronk, 775 F.3d 871
An annuity does not have to comply with multiple provisions of the Internal Revenue Code (IRC) to qualify for an exemption under sub. (3) (j). “Complies with the provisions of the internal revenue code" in sub. (3) (j) 2. a. means eligibility to receive the tax deferral applicable to annuities under the IRC. Since the IRC taxes most income in one way or another, the critical issue in taxing an annuity is whether the taxpayer can benefit from deferred taxation of the implicit appreciation of the principal paid up front for the stream of later income. Accordingly, the most sensible reading of the statute is that the exemption under sub. (3) (j) should not depend on whether the annuity is taxable in accordance with the IRC but rather whether the tax is deferred in accordance with the IRC. Wittman v. Koenig, 831 F.3d 416
The referee did not abuse his discretion under s. 272.18 (30) (a) [now s. 815.18 (10)] in ruling that a debtor, by fraudulently concealing and transferring assets, forfeited any right to exemptions, only with respect to collection of trustee's judgment. In Re Schroeder, 356 F. Supp. 417
Updating Wisconsin's exemption law. Ludwig and Pouros. Wis. Law. Aug. 1990.
Levy on personal property; appraisal. 815.19(1)(1)
Personal property shall be bound from the time it is seized. Whenever personal property is seized on attachment or execution and any part of the property is exempt therefrom and the exemption is claimed by the debtor or the debtor's spouse, the officer making the seizure shall, upon request by either of them, or may upon the officer's motion, cause the exempt property to be appraised by 2 disinterested freeholders of the county, who shall first be sworn by the officer to make a true appraisement thereof, which appraisement shall be in writing, be signed by the appraisers and be prima facie evidence of the value of the property appraised. The appraisement, together with the true inventory of all the property seized, shall be returned with the writ. The fees of the appraisers are prescribed in s. 814.72
If the property seized is an automobile which is appraised and can be sold for more than $1,000 or if the property seized is a tractor used in farming operations which is appraised and can be sold for more than $1,500, the officer may sell such automobile or tractor and out of the proceeds of such sale the officer shall pay to the debtor or the debtor's spouse the exempted value of such automobile or tractor. The balance of the proceeds of such sale shall be applied on the execution or attachment.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); 1975 c. 94
s. 91 (3)
; 1975 c. 199
; Stats. 1975 s. 815.19; 1979 c. 355
; 1981 c. 317
; 1983 a. 186
Levy on real property; how made.
Levy of execution on real property is made by endorsing on the execution a description of the property on which the levy was made, and recording the execution, so endorsed, in the office of the register of deeds.
History: 1973 c. 189
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.195; 1993 a. 301
Homestead exemption definition. 815.20(1)(1)
An exempt homestead as defined in s. 990.01 (14)
selected by a resident owner and occupied by him or her shall be exempt from execution, from the lien of every judgment, and from liability for the debts of the owner to the amount of $75,000, except mortgages, laborers', mechanics', and purchase money liens and taxes and except as otherwise provided. The exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale of the homestead, but shall extend to the proceeds derived from the sale to an amount not exceeding $75,000, while held, with the intention to procure another homestead with the proceeds, for 2 years. The exemption extends to land owned by husband and wife jointly or in common or as marital property, and each spouse may claim a homestead exemption of not more than $75,000. The exemption extends to the interest therein of tenants in common, having a homestead thereon with the consent of the cotenants, and to any estate less than a fee.
Any owner of an exempt homestead against whom a judgment has been rendered and entered in the judgment and lien docket, and any heir, devisee, or grantee of the owner, or any mortgagee of the homestead, may proceed under s. 806.04
for declaratory relief if the homestead is less than $75,000 in value and the owner of the judgment shall fail, for 10 days after demand, to execute a recordable release of the homestead from the judgment owner's judgment lien.
History: 1973 c. 168
; Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.20; 1983 a. 186
; 1985 a. 153
; 1993 a. 486
; 1995 a. 224
; 2009 a. 80
A defendant who has moved to Michigan intending to stay there lost his Wisconsin homestead exemption. He cannot have an exemption in 2 states. Plan Credit Corp. v. Swinging Singles, Inc. 54 Wis. 2d 146
, 194 N.W.2d 822
A vendee in a land contract has an interest sufficient to sustain a homestead exemption. The holder of a judgment lien is subject to a mortgage dated after the judgment. A homestead exemption does not depend on a formal claim to it. Occupancy at the time a lien attaches is sufficient. Lueptow v. Guptill, 56 Wis. 2d 396
, 202 N.W.2d 255
Rental income from a rented portion of a homestead is exempt under the homestead exemption. Schwanz v. Teper, 66 Wis. 2d 157
, 223 N.W.2d 896
Property purchased by a debtor subsequent to the docketing of a judgment and immediately occupied as a homestead becomes exempt to the extent of the statutory protection. Northern State Bank v. Toal, 69 Wis. 2d 50
, 230 N.W.2d 153
Homestead rights are no greater than the underlying property rights when those property rights have been limited by the owners themselves. Master Lock Credit Union v. Rayford, 119 Wis. 2d 301
, 349 N.W.2d 737
(Ct. App. 1984).
Owners who permanently remove themselves from a home that is for sale with the intent of using the proceeds to procure another home are entitled to a homestead exemption in the sale proceeds. Moore v. Krueger, 179 Wis. 2d 449
, 507 N.W.2d 155
(Ct. App. 1993).
Because a judgment lien was subject to the homestead exemption while a federal tax lien was not, the operation of the homestead exemption effectively subordinated the otherwise superior judgment lien to the status of a junior lien, which was discharged by operation of federal law by the execution of the IRS's quitclaim deed after judicial sale. CVW, Ltd. v. Stress, 230 Wis. 2d 450
, 602 N.W.2d 162
(Ct. App. 1999), 99-0252
When equity in a homestead exceeds $40,000, the homestead is partially exempt, and a docketed judgment is a lien upon the debtor's equity in excess of the $40,000. If a debtor has less than $40,000 in equity, the homestead is fully exempt, and the debtor has no interest to which a judgment lien may attach. Accordingly a debtor-seller can give clear title to the purchaser of fully exempt property. Rumage v. Gullberg, 2000 WI 53
, 235 Wis. 2d 279
, 611 N.W.2d 458
An in-court oral stipulation could create a mortgage interest in property, but under s. 706.02 (1) (f), a homestead conveyance must bear the conveyor's signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under sub. (1). Equitable Bank, S.S.B. v. Chabron, 2000 WI App 210
, 238 Wis. 2d 708
, 618 N.W.2d 262
A homestead created and maintained with stolen or embezzled property, or by the wrongful appropriation of property rightly belonging to others, is not protected by the homestead exemption. Estate of Paulman v. Pemberton, 2001 WI App 164
, 246 Wis. 2d 909
, 633 N.W.2d 715
Although debts were contracted prior to the effective date of an increase in the homestead exemption, the debtors were entitled to higher the exemption. Matter of Zahn, 605 F. 2d 323
The homestead exemption is void under the supremacy clause of the U.S. constitution to the extent that it impedes a federal court restitution order. U.S. v. Lampier, 89 F.3d 1316
Establishment and abandonment of a Wisconsin homestead. Kreitler, 1973 WLR 876.
Judgment lien claimants' rights against homestead exemption interests: An equitable distribution of mortgage foreclosure sale proceeds. 1981 WLR 697.
Certain property of spouse exempt from execution. 815.205(1)(1)
Property described in s. 806.15 (4) (intro.)
is exempt from execution on a judgment lien that attaches to that property under s. 806.15 (4) (b)
if the property is not available under s. 766.55
to satisfy the obligation for which the judgment was rendered.
If execution is issued in connection with the enforcement of a judgment lien on property that is exempt under sub. (1)
from execution on the judgment lien, a person with an ownership interest in the property other than the judgment debtor may, at any time before the sale of the property, notify the officer making the levy that the property is exempt from execution. The person making the notification of the exemption shall provide the officer with a description of the property.
If notification is made under par. (a)
, sale of the property is stayed if, within 5 days after the notification, demand on the owner of the judgment is made by a person with an ownership interest in the property other than the judgment debtor for a recordable release of the property from the judgment. If within 5 days after the demand the owner of the judgment fails to execute the recordable release, the stay on the sale of the property continues if a person with an ownership interest in the property other than the judgment debtor commences an action under s. 806.04
for declaratory relief within 15 days after the demand was made. The stay on the sale of the property continues until the court determines whether the property is exempt under sub. (1)
. If no action under s. 806.04
is commenced within the required period, the stay lapses on the expiration of the required period.
If the sale of property is stayed under this subsection, no additional stay on the sale of that property is available under this subsection, regardless of whether the additional stay is sought by the person who initially gave notice under par. (a)
or by any other person with an ownership interest in the property.
History: 1991 a. 301
Homestead, how set apart after levy. 815.21(1)(1)
Whenever a levy shall be made upon lands of any person, the landowner may notify the officer making such levy, at any time before the sale, that the landowner claims an exempt homestead in such lands, giving a description thereof, and the landowner's estimate of the value thereof; and the remainder alone shall be subject to sale under such levy, unless the plaintiff in the execution shall deny the right to such exemption or be dissatisfied with the quantity or estimate of the value of the land selected.
If such plaintiff is dissatisfied with the quantity selected or the estimate of the value thereof, the officer shall cause such lands to be surveyed, beginning at a point to be designated by the owner and set off in compact form. After the lands are surveyed and set off, if in the opinion of the plaintiff, the same shall be of greater value than $75,000, the officer may still advertise and sell the premises so set off, and out of the proceeds of such sale pay to the exempt homestead claimant the sum of $75,000 and apply the balance of the proceeds of such sale on the execution; but no sale shall be made in the case last mentioned unless a greater sum than $75,000 is paid for said premises. The expenses of such survey and sale shall be collected on the execution if the owner claimed as the owner's homestead a greater quantity of land or land of greater value than the owner was entitled to; otherwise such expenses shall be borne by the plaintiff.
If such survey be made the land not exempt shall be sold, but if any person shall neglect or refuse to select the person's exempt homestead and notify such officer, such officer shall, upon request of the plaintiff, and may without such request, give notice to such person that at a time and place to be therein named such officer will survey and locate the exempt homestead; and unless such person shall on or before the time so fixed select such exempt homestead, such officer shall survey and locate and set the same off in a compact form. If the owner after such notice selects the owner's exempt homestead, this section shall apply the same as if the owner had selected it before such notice.
A homestead so selected and set apart by such officer shall be the exempt homestead of such person. The costs of such notice and survey shall be collected upon the execution. A failure of the officer to set apart such homestead shall affect such levy, only as to such homestead; and the failure of such person to select that person's homestead shall not impair that person's right thereto, but only that person's right to select the same when such selection is lawfully made by such officer. After such homestead is thus set off by such officer, if, in the officer's opinion or in the opinion of the plaintiff, the premises are of greater value than $75,000 the officer may sell the same as where the owner makes the selection.
If the land claimed as an exempt homestead exceeds in value $75,000, the officer shall not be bound to set off any portion thereof but may sell the same, unless the debtor shall make the debtor's selection of such a portion thereof as shall not exceed $75,000 in value.
History: 1973 c. 168
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.21; 1985 a. 153
; 1993 a. 486
; 2009 a. 80
There is a strong public policy to protect the homestead exemption, even in the face of inaction. Sub. (1) provides that when there is a levy upon the lands of any person, that person can claim a homestead exemption at any time before sale. Anchor Savings & Loan Association v. Week, 62 Wis. 2d 169
, 213 N.W.2d 737