Chapter 861

861.09 History History: 1997 a. 188.

861.10 861.10 Waiver of right to elect; failure to elect.

861.10(1) (1) Right to elect may be waived. The right to elect a deferred marital property elective share amount may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver must be contained in a marital property agreement that is enforceable under s. 766.58 or in a signed document filed with a court described in s. 861.08 (1) (a) after the decedent’s death.

861.10(2) (2) Waiver of “all rights”. Unless the waiver provides otherwise, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or in a complete property settlement entered into because of separation or divorce, is a waiver of all rights in the deferred marital property elective share amount.

861.10(3) (3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of property and is not a gift from the surviving spouse to the decedent spouse’s probate estate or to the beneficiaries of other transfers.

861.10 History History: 1997 a. 188; 2005 a. 216.

861.11 861.11 Protection of payers and other 3rd parties.

861.11(1) (1) Definition. In this section, “governing instrument” includes a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m) or a recorded application under s. 867.046 (5).

861.11(2) (2) Payer not liable until notice received.

861.11(2)(a) (a) Upon a beneficiary’s request for payment, a payer or other 3rd party who has received satisfactory proof of the decedent’s death and who has not received written notice that the surviving spouse or his or her representative intends to file a petition for the deferred marital property elective share amount or that a petition for the election has been filed is not liable for any of the following:

861.11(2)(a)1. 1. Causing any payment, item of property or other benefit included in the augmented deferred marital property estate under s. 861.03, to transfer directly to the beneficiary designated in a governing instrument.

861.11(2)(a)2. 2. Any other action in good faith reliance on the validity of a governing instrument.

861.11(2)(b) (b) A payer or other 3rd party is liable for payments made or other actions taken after receipt of written notice of the intent to file a petition for the elective share amount or written notice that a petition for the elective share amount has been filed.

861.11(3) (3) Method of notice to payers. A written notice of the intent to file a petition for the election or written notice that a petition for the election has been filed shall fulfill one of the following requirements:

861.11(3)(a) (a) Be mailed to the payer’s or other 3rd party’s main office or home by registered or certified mail, return receipt requested.

861.11(3)(b) (b) Be served upon the payer or other 3rd party in the same manner as a summons in a civil action.

861.11(4) (4) Optional payment of proceeds to court.

861.11(4)(a) (a) Upon receipt of written notice of the intent to file, or the filing of, a petition for the election, a payer or other 3rd party may pay any amount owed or transfer or deposit any item of property to or with whichever of the following applies:

861.11(4)(a)1. 1. The court that has jurisdiction of the probate proceedings relating to the decedent’s estate if proceedings have been commenced.

861.11(4)(a)2. 2. The court that has jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence, if no judicial proceeding has commenced.

861.11(4)(b) (b) Payments, transfers or deposits made to the court discharge the payer or other 3rd party from all claims for amounts paid or the value of property transferred or deposited.

861.11(4)(c) (c) The court shall hold the funds or items of property. After the court makes its determination under s. 861.08 (5), it shall order disbursement in accordance with that determination. The court shall order disbursement to the beneficiary designated in the governing instrument if either of the following conditions applies:

861.11(4)(c)1. 1. No petition is filed in the court within the specified time under s. 861.08 (1).

861.11(4)(c)2. 2. A petition was filed but withdrawn under s. 861.08 (4) with prejudice.

861.11(4)(d) (d) If payments have been made to the court or if property has been deposited with the court under par. (a), the court may order that all or part of the payments or property be paid to the beneficiary who is designated in the governing instrument, upon that beneficiary’s petition to the court. Those payments shall be in an amount and subject to conditions consistent with this subchapter.

861.11(5) (5) Protection of financial institutions.

861.11(5)(a) (a) In this subsection:

861.11(5)(a)1. 1. “Account” has the meaning given in s. 705.01 (1) or 710.05 (1) (a).

861.11(5)(a)2. 2. “Financial institution” has the meaning given in s. 705.01 (3).

861.11(5)(b) (b) Notwithstanding sub. (2), in addition to the protections afforded a financial institution under ss. 701.1012 and 710.05 and chs. 112 and 705 a financial institution is not liable for having transferred an account included in the augmented deferred marital property estate under s. 861.03 to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the beneficiary’s apparent entitlement under the terms of a governing instrument, regardless of whether the financial institution received written notice of an intent to file, or the filing of, a petition for the deferred marital property elective share amount.

861.11(5)(c) (c) If a financial institution has reason to believe that a dispute exists as to the rights of parties, or their successors, to an account subject to a governing instrument, the financial institution may, but is not required to, do any of the following:

861.11(5)(c)1. 1. Deposit the account with a court as provided in sub. (4).

861.11(5)(c)2. 2. Refuse to transfer the account to any person.

861.11(5)(d) (d) The protection afforded a financial institution under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of accounts.

861.11 History History: 1985 a. 37; 1987 a. 393 s. 53; 1997 a. 188; 2005 a. 216; 2013 a. 92.

subch. III of ch. 861 SUBCHAPTER III

OTHER RIGHTS, ALLOWANCES AND EXEMPTIONS

861.17 861.17 Rights in property transferred in fraud of surviving spouse.

861.17(1) (1) Nothing in this chapter precludes a court in an equitable proceeding from subjecting to the rights of the surviving spouse under ch. 852 and this chapter any property arrangement made by the decedent in fraud of those rights. A property arrangement in fraud of the rights of the surviving spouse means any of the following:

861.17(1)(a) (a) Any transfer or acquisition of property, regardless of the form or type of property rights involved, made by the decedent during marriage or in anticipation of marriage for the primary purpose of defeating the rights of the surviving spouse under ch. 852 and this chapter.

861.17(1)(b) (b) Any breach of the good faith duty imposed by s. 766.15 made for the primary purpose of defeating the rights of the surviving spouse in or to marital property.

861.17(2) (2) An arrangement made before marriage, or within one year after marriage, or prior to April 1, 1971, to provide for issue by a prior marriage is not a fraudulent property arrangement within the meaning of this section.

861.17(3) (3) If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the amount the spouse would receive under ch. 852 and this chapter. Other rules of this chapter apply so far as possible. A spouse who recovers under this subsection forfeits any power of appointment that the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power.

861.17(3m) (3m) If the spouse is successful in an action to reach fraudulent property arrangements involving marital property, recovery is limited to the surviving spouse’s interest in the marital property. Other rules of this chapter apply so far as possible. Recovery forfeits any power of appointment which the surviving spouse possesses over the remaining portion of the fraudulently arranged marital property, except a special power.

861.17(4) (4) The surviving spouse has no rights against any person dealing with the property without actual knowledge, or receipt of written notice, of the claim of the spouse. A person who has knowledge of facts and circumstances sufficient to put the person on inquiry as to a claim by the spouse does not have actual knowledge and is not required to make further inquiry. This subsection does not protect a gratuitous donee from the original beneficiary of the fraudulent arrangement.

861.17(5) (5) Every such suit must be brought within 3 years of decedent’s death, but may be barred by laches at an earlier date.

861.17 History History: 1983 a. 186; 1985 a. 37 s. 187; 1993 a. 486; 2005 a. 216.

861.20 861.20 Surviving spouse’s right in nondomiciliary decedent’s real property in this state.

861.20(1) (1) If a married person who does not have a domicile in this state dies and leaves a valid will disposing of real property in this state which is not the community property or marital property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in that property against the will of the decedent as if the property were located in the decedent’s domicile at the decedent’s death. The procedure of the decedent’s domicile for electing against the will applies to such an election.

861.20(2) (2) If a married person who does not have a domicile in this state dies and has an interest in real property in this state that is subject to administration but not disposed of by will, the surviving spouse has the same right to the property under intestate succession as if the property were located in the decedent’s domicile at decedent’s death.

861.20 History History: 1985 a. 37; 1987 a. 393; 2005 a. 216.

861.21 861.21 Assignment of home to surviving spouse or surviving domestic partner.

861.21(1) (1) Definitions. In this section:

861.21(1)(a) (a) “Governing instrument” has the meaning given in s. 854.01 (2).

861.21(1)(b) (b) “Home” means any dwelling in which the decedent had an interest and that at the time of the decedent’s death the surviving spouse or surviving domestic partner occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse or surviving domestic partner. “Home” includes a house, a mobile home, a manufactured home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse or surviving domestic partner and a building used in part for a dwelling and in part for commercial or business purposes. “Home” includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under sub. (5).

861.21(2) (2) Decedent’s property interest in home. Subject to subs. (4) and (5), if a married decedent or decedent in a domestic partnership has a property interest in a home, the decedent’s entire interest in the home shall be assigned to the surviving spouse or surviving domestic partner if the surviving spouse or surviving domestic partner petitions the court requesting such a distribution and if a governing instrument does not provide a specific transfer of the decedent’s interest in the home to someone other than the surviving spouse or surviving domestic partner. The surviving spouse or surviving domestic partner shall file the petition within 6 months after the decedent’s death, unless the court extends the time for filing.

861.21(4) (4) Payment by surviving spouse or surviving domestic partner. The court shall assign the interest in the home under sub. (2) to the surviving spouse or surviving domestic partner upon payment of the value of the decedent’s interest in the home that does not pass to the surviving spouse or surviving domestic partner under intestacy or under a governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse or surviving domestic partner may use assets due him or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court extends the time, the surviving spouse or surviving domestic partner shall have one year from the decedent’s death to pay the value of the assigned interest.

861.21(5) (5) Severance of home from surrounding land. On petition of the surviving spouse or surviving domestic partner or of any interested person that part of the land is not necessary for dwelling purposes and that it would be inappropriate to assign all of the surrounding land as the home under sub. (2), the court may set off for the home as much of the land as is necessary for a dwelling. In determining how much land should be set off, the court shall take into account the use and marketability of the parcels set off as the home and the remaining land.

861.21 History History: 1997 a. 188; 2005 a. 216; 2007 a. 11; 2009 a. 28.

861.31 861.31 Allowance to family during administration.

861.31(1m) (1m) The court may, without notice or on such notice as the court directs, order payment by the personal representative or special administrator of an allowance as the court determines necessary or appropriate for the support of the surviving spouse or surviving domestic partner and any minor children of the decedent during the administration of the estate. The court shall consider the size of the probate estate, other resources available for support, the existing standard of living, and any other factors it considers relevant.

861.31(2) (2) The court may order that an allowance be made to the spouse or surviving domestic partner for support of the spouse or surviving domestic partner and any minor children of the decedent, or that separate allowances be made to the spouse or surviving domestic partner and to the minor children of the decedent or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse or surviving domestic partner, the court may order that an allowance be made to the minor children of the decedent or to their guardian, if any.

861.31(3) (3) The initial order for support may not exceed one year but may be extended for additional periods of not to exceed one year at a time, and is subject to revision or termination at any time by further order of the court.

861.31(4) (4) The court may order that the allowance be charged against income or principal, either as an advance or otherwise, but the court may not order that an allowance for support of minor children of the decedent be charged against the income or principal interest of the surviving spouse or surviving domestic partner. The court may order that the allowance for support of the surviving spouse or surviving domestic partner, not including any allowance for support of minor children of the decedent, be applied in satisfaction of any of the following:

861.31(4)(a) (a) Any entitlement of the surviving spouse under s. 853.12.

861.31(4)(b) (b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02.

861.31 History History: 1971 c. 40; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.

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

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: