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.
OTHER RIGHTS, ALLOWANCES AND EXEMPTIONS
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 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.
861.31
861.31
Allowance to family during administration. 861.31(1)(1) 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 it determines necessary or appropriate for the support of the surviving spouse and any minor children of the decedent during the administration of the estate. In making or denying the order the court shall consider the size of the probate estate, other resources available for support, existing standard of living, and any other factors it considers relevant.
861.31(2)
(2) The allowance may be made to the spouse for support of the spouse and any minor children of the decedent, or separate allowances may be made to the spouse and to the minor children of the decedent or their guardian if the minor children do not reside with the surviving spouse or if for any other reason the court finds separate allowances advisable. If there is no surviving spouse the allowance may be made to the minor children of the decedent or to their guardian.
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 direct that the allowance be charged against income or principal, either as an advance or otherwise, but in no event may an allowance for support of minor children of the decedent be charged against the income or principal interest of the surviving spouse. The court may direct that the allowance for support of the surviving spouse, not including any allowance for support of minor children, be applied against any right of the surviving spouse to elect under
ss. 861.02 (1) and
861.03.
861.31 History
History: 1971 c. 40;
1991 a. 301.
861.31 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive 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. 861.33(1)(a)(a) Subject to this section, in addition to all allowances and distributions, the surviving spouse may file with the court a written selection of the following personal property, which shall thereupon be transferred to the spouse 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;
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 $1,000 in inventory value.
861.33(1)(b)
(b) The selection in
par. (a) may not include items specifically bequeathed except that the surviving spouse 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 which 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 $3,000 in aggregate inventory value until such time as claims are paid in full or the court otherwise orders; or the court may require the spouse to retransfer property in excess of $3,000 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 $1,000 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 selected by the spouse 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.
861.33 Annotation
This section is constitutional. In Matter of Estate of Eisenberg, 90 W (2d) 620, 280 NW (2d) 359 (Ct. App. 1979).
861.35
861.35
Special allowance for support of spouse and support and education of minor children. 861.35(1)
(1) If the decedent is survived by a spouse 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. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse, the court also may allot directly to the minor children household furniture, furnishings and appliances. No allowance may be made under this section if any of the following apply:
861.35(1)(a)
(a) The decedent has amply provided for each child and for the spouse by the terms of his or her will and the estate is sufficient to carry out the terms after payment of all debts and expenses, or support and education have been provided for by any other means.
861.35(1)(b)
(b) In the case of minor children, if the surviving spouse is legally responsible for support and education and has ample means to provide them in addition to his or her own support.
861.35(1)(c)
(c) In the case of the surviving spouse, if 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 18, or if at any time the property held by the trustee is no longer required for the support of the spouse or the support and education of the minor child, any remaining property is to be distributed by the trustee as directed by the court 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 the effect on claims under
s. 859.25 and shall balance the needs of the spouse or minor child against the nature of the creditors' claims in setting the amount allowed hereunder. The court shall also consider the size of the estate, other resources available for support, the existing standard of living and any other factors it considers relevant. The court may direct that the allowance to the surviving spouse, not including any allowance for the support and education of minor children, be applied against any right of the surviving spouse to elect under
ss. 861.02 (1) and
861.03.
861.35 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
861.41
861.41
Exemption of property to be assigned to surviving spouse. 861.41(1)(1) After the amount of claims against the estate has been ascertained, the surviving spouse may petition the court to set aside as exempt from the claims of creditors under
s. 859.25 (1) (h) an amount of property reasonably necessary for the support of the spouse, not to exceed $10,000 in value, if it appears that the assets are insufficient to pay all claims and allowances and still leave the surviving spouse such an amount of property in addition to selection and allowances.
861.41(2)
(2) The court shall grant the petition if it determines that an assignment ahead of creditors is reasonably necessary for the support of the spouse. In determining the necessity and the amount of property to be assigned, the court must take into consideration the availability of a home to the surviving spouse and all other assets and resources available for support.
861.41(3)
(3) The assignment of property shall be applied against any right of the surviving spouse to take under the will or under the intestate succession law or to elect under
ss. 861.02 (1) and
861.03.
861.41(4)
(4) If the decedent's estate includes an interest in a home, the court may upon request of the spouse include as part or all of the property assigned to the spouse either a fee or a life interest in the home, to the extent of the decedent's interest therein. If the value of the interest in the home requested by the spouse would exceed the amount set by the court under this section, the court may nevertheless assign the interest to the spouse upon payment to the personal representative of the excess of the value of the interest over the amount set by the court. The court may require a new appraisal or use the original inventory value. Home has the same meaning as provided in
s. 852.09 (2).
