The power of alienation is suspended when there are no persons in being who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personalty.
There is no suspension of the power of alienation by a trust or by equitable interests under a trust if the trustee has power to sell, either expressed or implied, or if there is an unlimited power to terminate in one or more persons in being.
This section does not apply to limit any of the following:
Transfers, outright or in trust, for charitable purposes;
Transfers to literary or charitable corporations;
Transfers to any cemetery corporation, society or association;
Transfers, outright or in trust, to the state society of physicians and surgeons incorporated under the law of this state, when the transfer is for the advancement of medical science;
The common-law rule against perpetuities is not in force in this state.
Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975); 1983 a. 189
s. 329 (26)
; 1989 a. 278
; 1995 a. 406
; 2013 a. 92
Classification and characteristics of certain concurrent interests. 700.17(1)
Classification of concurrent interests.
Interests in property may be owned concurrently by 2 or more persons as joint tenants or as tenants in common. A joint tenancy or tenancy in common established exclusively between spouses after the determination date is classified as provided under s. 766.60 (4) (b)
(2) Characteristics of joint tenancy. 700.17(2)(a)(a)
Each of 2 or more joint tenants has an equal interest in the whole property for the duration of the tenancy, irrespective of unequal contributions at its creation. On the death of one of 2 joint tenants, the survivor becomes the sole owner; on the death of one of 3 or more joint tenants, the survivors are joint tenants of the entire interest. If a survivor disclaims under s. 854.13 (2) (b)
, the joint tenancy is severed as of the date of death with respect to the disclaimed interest.
If a joint tenant unlawfully and intentionally kills another joint tenant of the same property, the disposition of the deceased joint tenant's interest in the joint tenancy is governed by s. 854.14
(3) Characteristics of tenancy in common.
Each of 2 or more tenants in common has an undivided interest in the whole property for the duration of the tenancy. There is no right of survivorship incident to a tenancy in common, but a remainder may be created to vest ownership in the survivor of several persons who own as tenants in common other preceding interests, such as a life interest, in the same property.
As to sub. (1), see notes in 1985 Wis. Act 37
, marital property trailer bill.
Rental income must be attributed to joint tenants in proportion to ownership. McManus v. Department of Revenue, 91 Wis. 2d 682
, 283 N.W.2d 576
Concurrent ownership; joint tenancy and tenancy in common. Talsky, 55 MLR 321.
Determination of cotenancy generally.
Two or more persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are tenants in common, except as otherwise provided in s. 700.19
or ch. 766
History: 1991 a. 301
A warranty deed to 2 grantees as "single persons" did not express an intent to classify the property as something other than survivorship marital property when the grantees subsequently married. The use of the phrase "single persons" simply described a fact: that at the time they purchased the vacant lot, the grantees were not married. "Single persons" does not represent a classification of property ownership of any kind, to wit, tenancy in common, joint tenancy, marital property, or any other recognized classification. Droukas v. Estate of Felhofer, 2014 WI App 6
, 352 Wis. 2d 380
, 843 N.W.2d 57
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
Creation of joint tenancy. 700.19(1)
The creation of a joint tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale. Any of the following constitute an expression of intent to create a joint tenancy: "as joint tenants", "as joint owners", "jointly", "or the survivor", "with right of survivorship" or any similar phrase except a phrase similar to "survivorship marital property".
(2) Husband and wife.
If persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are described in the document, instrument or bill of sale as husband and wife, or are in fact husband and wife, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument or bill of sale. This subsection applies to property acquired before January 1, 1986, and, if ch. 766
does not apply when the property is acquired, to property acquired on or after January 1, 1986.
(2m) Domestic partners.
If persons named as owners in a document of title, transferees in an instrument of transfer, or buyers in a bill of sale are described in the document, instrument, or bill of sale as domestic partners under ch. 770
, or are in fact domestic partners under ch. 770
, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument, or bill of sale.
If covendors owned realty as joint tenants and a purchase money mortgage names the covendors as mortgagees, the mortgagees are joint tenants, unless the purchase money mortgage expresses an intent that the mortgagees are tenants in common.
Notwithstanding s. 700.18
and subs. (1)
, co-personal representatives and cotrustees hold title to interests in property as joint tenants.
(5) Change in common law requirements.
The common law requirements of unity of title and time for creation of a joint tenancy are abolished.
Nature of cotenancies and their taxation — death and gift. Sheedy, Sullivan, 56 MLR 3.
Extent of undivided interests in tenancy in common.
The extent of the undivided interests of tenants in common for the duration of the tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale; if no intent is expressed in the document, instrument or bill of sale, tenants in common are presumed to own equal undivided interests for the duration of the tenancy.
History: 1971 c. 66
Covendors in contracts to transfer. 700.21(1)
If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as joint tenants, the purchase price is payable to them as joint tenants, unless the contract expresses a contrary intent. If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as tenants in common, the purchase price is payable to them according to their interests, unless the contract expresses a contrary intent.
If 2 or more persons are named as covendors in a contract to transfer an interest in property which is owned by less than all of the covendors, the purchase price is payable to the owner or owners of the interest in property to which the contract relates, unless the contract expresses an intent that the purchase price is payable to the covendors as joint tenants or as tenants in common.
History: 1971 c. 66
Exception for equitable rights of cotenants and 3rd persons.
Nothing in ss. 700.17
prevents an equitable lien arising in favor of one cotenant against another tenant or tenants because of events occurring after the establishment of the cotenancy relationship nor prevents imposition of a constructive trust in favor of a 3rd person in an appropriate case.
History: 1971 c. 66
; 2005 a. 253
Exception for bank deposits, checks, government bonds and vehicles. 700.22(1)(a)(a)
In this subsection, "deposits" include checking accounts or instruments deposited into or drawn on checking accounts, savings accounts, certificates of deposit, investment shares or any other form of deposit.
Nothing in ss. 700.17
governs the determination of rights to deposits in banks, building and loan associations, savings banks, savings and loan associations, credit unions or other financial institutions.
Nothing in ss. 700.17
applies to United States obligations to the extent they are governed by law of the United States.
See ch. 705
for provisions applicable to multiple party accounts.
There is no sound reason for ascribing to joint checking accounts the attributes of a common-law joint tenancy other than survivorship. No tracing of assets is permissible. Estates of Beisbier, 47 Wis. 2d 409
, 177 N.W.2d 919
Liability among cotenants for rents and profits. 700.23(1)(1)
The provisions of this section apply only in the absence of a valid agreement to the contrary between the cotenants. As used in this section, "proportionate share" means a share determined by the number of joint tenants, in the case of a joint tenancy, and the extent of a tenant in common's undivided interest, in the case of a tenancy in common.
If land belonging to 2 or more cotenants is rented to a 3rd person, any cotenant may recover that cotenant's proportionate share of the net rents collected by another cotenant after deduction of property taxes, maintenance costs and any other proper charges relating to the property.
If land belonging to such cotenants is occupied by one cotenant and not by another, any cotenant not occupying the premises may recover from the occupying cotenant:
A proportionate share of the reasonable rental value of the land accruing after written demand for rent if the occupying tenant manifests an intent to occupy the premises to the exclusion of the other cotenant or cotenants;
A proportionate share of the net profits if the occupying cotenant engages in mining, cutting of timber, removal of sand or gravel, or any similar operation resulting in diminution of the value of the premises. In such a case, the occupying cotenant must render an accounting to the other cotenant, showing all receipts and expenditures, and is entitled to deduct a reasonable amount for the value of services provided by the occupying cotenant; but any other cotenant may in the alternative elect to recover that cotenant's proportionate share of the amount which that cotenant can prove would have been received by licensing a 3rd party to carry on the same operation.
If one cotenant has leased the premises from another cotenant, upon expiration of the lease it is presumed that the cotenant who has leased the premises from the other cotenant continues to hold over as provided in s. 704.25
, unless that cotenant gives to the other cotenant prior to the expiration of the lease a written notice to the contrary, by one of the methods under s. 704.21
History: 1971 c. 66
; 1991 a. 316
Sub. (3) does not control all cases in which a nonoccupying cotenant asserts a claim against a cotenant in possession, and does not apply when a tenant has not been ousted from the property. Klawitter v. Klawitter, 2001 WI App 16
, 240 Wis. 2d 685
, 623 N.W.2d 169
Death of a joint tenant; effect of liens.
A real estate mortgage, a security interest under ch. 409
, or a lien under s. 72.86 (2)
, 1985 stats., or s. 71.91 (5) (b)
, or ch. 49
on or against the interest of a joint tenant does not defeat the right of survivorship in the event of the death of such joint tenant, but the surviving joint tenant or tenants take the interest such deceased joint tenant could have transferred prior to death subject to such mortgage, security interest, or statutory lien.
The docketing of a judgment creates a lien upon the debtor's interest in joint tenancy property, but it does not, without levy and execution, sever the joint tenancy. If the debtor dies following docketing of the judgment, but prior to execution, the surviving joint tenant takes the entire interest in the property free of the judgment lien, as the debtor's interest in the property that was subject to the lien has been extinguished. Northern State Bank v. Toal, 69 Wis. 2d 50
, 230 N.W.2d 153
A decedent's one-half interest in joint property that was subject to a federal tax lien against the decedent becomes encumbered with the tax lien when it passes to the survivor. U.S. v. Librizzi, 108 F.3d 136
Applicability of chapter.
This chapter applies to interests in property in existence on July 1, 1971, and to interests in property created after such date. If application of any provision of this chapter to an interest in property in existence on July 1, 1971, is unconstitutional, it shall not affect application of the provision to an interest in property created after July 1, 1971.
Applicability of general transfers at death provisions. Chapter 854
applies to a transfer at death under an instrument of transfer.
History: 1997 a. 188
Disclaimer of transfers during life. 700.27(1)(a)
"Beneficiary under an inter vivos governing instrument" includes any person who receives or might receive property under the terms or legal effect of an inter vivos governing instrument.
Means a gratuitous deed, inter vivos trust instrument, insurance policy, contract, inter vivos instrument that creates or exercises a power of appointment, or any other dispositive, appointive, or nominative instrument that transfers property other than a governing instrument as defined in s. 854.01 (2)
Includes an inter vivos gift that is not subject to a written instrument.
In this paragraph, "person" includes a person who is unborn or whose identity is unascertained.
A person who is a recipient of property or beneficiary under an inter vivos governing instrument, donee of a power of appointment created by an inter vivos governing instrument, appointee under a power of appointment exercised by an inter vivos governing instrument, taker in default under a power of appointment created by an inter vivos governing instrument, or person succeeding to disclaimed property created by an inter vivos governing instrument may disclaim any property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.
Property transferred under an inter vivos governing instrument may be disclaimed in whole or in part, except that a partial disclaimer of property passing by an inter vivos governing instrument or by the exercise of a power of appointment may not be made if partial disclaimer is expressly prohibited by the inter vivos governing instrument or by the instrument exercising the power of appointment.
The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
Disclaimer by a guardian or conservator.
A guardian of the estate or a conservator appointed under ch. 880
, 2003 stats., or ch. 54
may disclaim on behalf of his or her ward, with court approval, if the ward is entitled to disclaim under this section.
Disclaimer by an agent under power of attorney.
An agent under a power of attorney may disclaim on behalf of the person who granted the power of attorney if all of the following apply:
The person who granted the power of attorney is entitled to disclaim under this section.
The power of attorney specifically grants the power to disclaim.
Disclaimer by trustee.
The trustee of a trust named as a recipient of property under an inter vivos governing instrument may disclaim that property on behalf of the trust if the trust authorizes disclaimer by the trustee. If the trust does not authorize disclaimer by the trustee, the trustee's power to disclaim is subject to the approval of the court.