PROBATE — FAMILY RIGHTS
SUBCHAPTER I
INTEREST IN MARITAL PROPERTY
861.01   Ownership of marital property at death.
861.015   Satisfaction of nonholding spouse's marital property interest in certain business property.
SUBCHAPTER II
DEFERRED MARITAL PROPERTY
ELECTIVE SHARE AMOUNT
861.018   Definitions.
861.02   Deferred marital property elective share amount.
861.03   Augmented deferred marital property estate: decedent's probate property and nonprobate or other property transfers.
861.04   Augmented deferred marital property estate: surviving spouse's property and transfers to others.
861.05   Augmented deferred marital property estate: calculation of property interests.
861.06   Satisfaction of deferred marital property elective share amount.
861.07   Personal liability of recipients.
861.08   Proceeding for election; time limit.
861.09   Right of election by or on behalf of surviving spouse.
861.10   Waiver of right to elect; failure to elect.
861.11   Protection of payers and other 3rd parties.
SUBCHAPTER III
OTHER RIGHTS, ALLOWANCES AND EXEMPTIONS
861.17   Rights in property transferred in fraud of surviving spouse.
861.20   Surviving spouse's right in nondomiciliary decedent's real property in this state.
861.21   Assignment of home to surviving spouse or surviving domestic partner.
861.31   Allowance to family during administration.
861.33   Selection of personalty by surviving spouse or surviving domestic partner.
861.35   Special allowance for support of spouse or domestic partner and support and education of minor children.
861.41   Exemption of property to be assigned to surviving spouse or surviving domestic partner.
861.43   Authority and powers of conservator, guardian or agent.
subch. I of ch. 861 SUBCHAPTER I
INTEREST IN MARITAL PROPERTY
Subch. I of ch. 861 Cross-reference Cross-reference: See definitions in ch. 851.
Subch. I of ch. 861 Note NOTE: 1985 Wis. Act 37, which created ss. 861.03 to 861.13, contains explanatory notes.
861.01 861.01 Ownership of marital property at death.
861.01(1)(1)Surviving spouse's one-half interest in marital property. Upon the death of either spouse, the surviving spouse retains his or her undivided one-half interest in each item of marital property. The surviving spouse's undivided one-half interest in each item of marital property is not subject to administration. Ownership and management and control rights are set forth under ss. 857.01 and 857.015.
861.01(2) (2)Interest of a 3rd party in marital property. A 3rd party who is a successor in interest to all or part of the decedent's 50 percent interest in marital property is a tenant in common with the surviving spouse.
861.01(3m) (3m)Personal injury damages; lost earnings. Section 766.31 (7m) determines the rights of a surviving spouse to that part of a personal injury claim that represents future lost earnings of the surviving spouse.
861.01(4) (4)Enforcement of surviving spouse's marital property rights in nonprobate assets. Section 766.70 applies to enforcement of a surviving spouse's marital property rights in nonprobate assets.
861.01(5) (5)Division of marital property on aggregate basis. Section 766.31 (3) (b) determines how marital property may be divided upon the death of a spouse.
861.01 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 2005 a. 216.
861.01 Annotation New probate and non-probate property elections under Wisconsin's marital property act. Erlanger and Weisberger. WBB Oct. and Nov. 1986.
861.01 Annotation Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
861.015 861.015 Satisfaction of nonholding spouse's marital property interest in certain business property.
861.015(1)(1)If following the death of a spouse property is subject to a directive under s. 857.015, the marital property interest of the nonholding spouse in the property shall be satisfied within one year after the decedent spouse's death from other property which is of equal clear market value at the time of satisfaction. Except as provided under sub. (3), if the interest of the nonholding spouse under this section is not satisfied within one year after the decedent spouse's death, this section does not apply and the nonholding spouse's marital property interest in the property subject to the directive continues as if the directive had not been made.
861.015(2) (2)For purposes of this section, property subject to a directive is valued by its clear market value on the date of the decedent's death. Satisfaction of the nonholding spouse's marital property interest in the property subject to the directive shall be based on that value, plus any income from the property subject to the directive after the death of the decedent and before satisfaction. For purposes of determining the income from the property subject to a directive, such property shall be treated as a legacy or devise of property other than money under s. 701.1115.
861.015(3) (3)If the interest of the nonholding spouse under this section is not satisfied within one year after the decedent spouse's death because the clear market value of the property subject to the directive has not been determined, the court having jurisdiction of the decedent spouse's estate shall do either of the following:
861.015(3)(a) (a) Order that the interest of the nonholding spouse shall be satisfied after the determination of clear market value, at a date specified by the court.
861.015(3)(b) (b) Order that the interest of the nonholding spouse shall be satisfied before the determination of clear market value based on an estimate of the clear market value, subject to any necessary adjustment upon final determination of clear market value.
861.015(4) (4)The following property is not available to satisfy the nonholding spouse's marital property interest in the property subject to the directive:
861.015(4)(a) (a) Property included in an order, or extension or revision of an order, for an allowance under s. 861.31 made before satisfaction of the nonholding spouse's interest.
861.015(4)(b) (b) Property selected under s. 861.33 before satisfaction of the nonholding spouse's interest.
861.015(4)(c) (c) Property included in an order for an allowance under s. 861.35 made before satisfaction of the nonholding spouse's interest.
861.015(5) (5)Satisfaction of a nonholding spouse's marital property interest under this section shall not adversely affect any of the following:
861.015(5)(a) (a) The nonholding spouse's marital property interest in property not subject to the directive.
861.015(5)(b) (b) The nonholding spouse's election under s. 861.02 of deferred marital property other than deferred marital property subject to the directive.
861.015 History History: 1987 a. 393; 1997 a. 188; 2005 a. 10; 2013 a. 92.
subch. II of ch. 861 SUBCHAPTER II
DEFERRED MARITAL PROPERTY
ELECTIVE SHARE AMOUNT
861.018 861.018 Definitions. In this subchapter:
861.018(1) (1)“Augmented deferred marital property estate" means the property under s. 861.02 (2).
861.018(2) (2)“Deferred individual property" means any property that satisfies all of the following:
861.018(2)(a) (a) Is not classified by ch. 766.
861.018(2)(b) (b) Was brought to the marriage or acquired while the spouses were married.
861.018(2)(c) (c) Would have been classified as individual property under ch. 766 if the property had been acquired when ch. 766 applied.
861.018(3) (3)“Nonadverse party" means a person who has a power relating to a trust or other property arrangement but who does not have a substantial beneficial interest that would be adversely affected by exercise or nonexercise of that power, except that “nonadverse party" does not include a person who has a general power of appointment over property, with respect to that property.
861.018(4) (4)“Power" includes a power to designate the beneficiary of a beneficiary designation.
861.018(5) (5)“Power of appointment" includes a power to designate the beneficiary of a beneficiary designation.
861.018(6) (6)“Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent held a power to create a present or future interest in himself or herself, his or her creditors, his or her estate or creditors of his or her estate and a power to revoke or invade the principal of a trust or other property arrangement, whether or not the decedent had the capacity to exercise the power at the time.
861.018(7) (7)“Property" has the meaning given in s. 851.27 and includes values subject to a beneficiary designation.
861.018(8) (8)“Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust or a similar arrangement.
861.018(9) (9)“Transfer" includes, but is not limited to, the following:
861.018(9)(a) (a) An exercise or release of a presently exercisable general power of appointment held by the decedent.
861.018(9)(b) (b) A lapse at death of a presently exercisable general power of appointment held by the decedent.
861.018(9)(c) (c) An exercise, release or lapse of either of the following:
861.018(9)(c)1. 1. A general power of appointment that the decedent created in himself or herself.
861.018(9)(c)2. 2. A power under s. 861.03 (3) that the decedent conferred on a nonadverse party.
861.018 History History: 1997 a. 188.
861.018 Annotation Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
861.02 861.02 Deferred marital property elective share amount.
861.02(1)(1)Amount. The surviving spouse has the right to elect an amount equal to no more than 50 percent of the augmented deferred marital property estate as determined under sub. (2).
861.02(2) (2)Augmented deferred marital property estate.
861.02(2)(a)(a) If the presumption of marital property under s. 766.31 (2) is rebutted as to the classification of an asset or a portion thereof, the asset or portion is presumed to be deferred marital property.
861.02(2)(b) (b) The augmented deferred marital property estate is the total value of the deferred marital property of the spouses, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction. It includes all types of property that fall within any of the following categories:
861.02(2)(b)1. 1. Probate and nonprobate transfers of the decedent's deferred marital property under s. 861.03 (1) to (3).
861.02(2)(b)2. 2. Decedent's gifts of deferred marital property made during the 2 years before the decedent's death under s. 861.03 (4).
861.02(2)(b)3. 3. Deferred marital property of the surviving spouse under s. 861.04.
861.02(3) (3)Calculation of property interests. Exclusions from the augmented deferred marital property estate, valuation of included property and reduction for expenses and claims are governed by s. 861.05.
861.02(4) (4)Satisfaction. Satisfaction of the augmented deferred marital property elective share amount is governed by ss. 861.06, 861.07, and 861.11, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction.
861.02(5) (5)Proceedings. Proceedings for the election are governed by ss. 861.08 and 861.09.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 102 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on February 19, 2020. Published and certified under s. 35.18. Changes effective after February 19, 2020, are designated by NOTES. (Published 2-19-20)