AB645-ASA1,48,324
(b) Except as provided in sub. (5), if property is transferred under a governing
25instrument that establishes 2 or more coowners with survivorship, and if it is not
1established that at least one of the coowners survived the others by at least 120
2hours, the property is transferred to the coowners in proportion to their ownership
3interests.
AB645-ASA1,48,9
4(3) Marital property. Except as provided in subs. (4) and (5), if a husband and
5wife die leaving marital property and it is not established that one survived the other
6by at least 120 hours, 50% of the marital property shall be distributed as if it were
7the husband's individual property and the husband had survived, and 50% of the
8marital property shall be distributed as if it were the wife's individual property and
9the wife had survived.
AB645-ASA1,48,17
10(4) Life insurance. Except as provided in sub. (5), if the insured and the
11beneficiary under a policy of life or accident insurance have both died and it is not
12established that one survived the other by at least 120 hours, the proceeds of the
13policy shall be distributed as if the insured had survived the beneficiary. If the policy
14is the marital property of the insured and of the insured's spouse and there is no
15alternative beneficiary except the estate or the personal representative of the estate,
16the proceeds shall be distributed as marital property in the manner provided in sub.
17(3).
AB645-ASA1,48,19
18(5) Exceptions. This section does not apply if any of the following conditions
19applies:
AB645-ASA1,48,2120
(a) The statute or governing instrument requires the individual to survive an
21event by a specified period.
AB645-ASA1,48,2322
(b) The statute or governing instrument indicates that the individual is not
23required to survive an event by any specified period.
AB645-ASA1,48,2524
(c) The statute or governing instrument deals with simultaneous deaths or
25deaths in a common disaster and the provision is relevant to the facts.
AB645-ASA1,49,3
1(d) The imposition of a 120-hour requirement would cause a nonvested
2property interest or a power of appointment to fail to be valid, or to be invalidated,
3under s. 700.16 or under the rule against perpetuities of the applicable jurisdiction.
AB645-ASA1,49,64
(e) The application of this section to more than one statute or governing
5instrument would result in an unintended failure or unintended duplication of a
6transfer.
AB645-ASA1,49,87
(f) The application of this section would result in the escheat of an intestate
8estate under s. 852.01 (3).
AB645-ASA1,49,11
9(6) Evidentiary standard. Unless the statute or governing instrument
10provides otherwise, proof that an individual survived the period required under
11subs. (1) to (4) must be by clear and convincing evidence.
AB645-ASA1,49,13
12(7) Extrinsic evidence. Extrinsic evidence may be used to construe a governing
13instrument affected by this section.
AB645-ASA1,49,20
14854.04 Representation; per stirpes; modified per stirpes; per capita at
15each generation; per capita. (1) By representation or per stirpes. (a) Except
16as provided in subs. (5) and (6), if a statute or a governing instrument calls for
17property to be distributed to the issue or descendants of a designated person "by
18representation", "by right of representation" or "per stirpes", the property is divided
19into equal shares for the children of the designated person. Each surviving child and
20each deceased child who left surviving issue are allocated one share.
AB645-ASA1,49,2321
(b) The share of each deceased child allocated a share under par. (a) is divided
22among that person's issue in the same manner as under par. (a), repeating until the
23property is fully allocated among surviving issue.
AB645-ASA1,50,4
24(2) Modified per stirpes. (a) Except as provided in subs. (5) and (6), if a statute
25or a governing instrument calls for property to be distributed to the issue or
1descendants of a designated person by "modified per stirpes", the property is divided
2into equal shares at the generation nearest to the designated person that contains
3one or more surviving issue. Each survivor and each deceased person in that same
4generation who left surviving issue are allocated one share.
AB645-ASA1,50,75
(b) The share of each deceased person allocated a share in par. (a) is divided
6among that person's issue in the same manner as under par. (a), repeating until the
7property is fully allocated.
AB645-ASA1,50,14
8(3) Per capita at each generation. (a) Except as provided in subs. (5) and (6),
9if a statute or a governing instrument calls for property to be distributed to the issue
10or descendants of a designated person "per capita at each generation", the property
11is divided into equal shares at the generation nearest to the designated person that
12contains one or more surviving issue. Each survivor in that generation is allocated
13one share, and the shares of the deceased persons in that same generation who left
14surviving issue are combined for distribution under par. (b).
AB645-ASA1,50,1815
(b) The combined share created under par. (a) is divided among the surviving
16issue of the persons whose shares were combined in the same manner as under par.
17(a), as though all of those issue were the issue of one person. The process is repeated
18until the property is fully allocated.
AB645-ASA1,50,22
19(4) Per capita. Except as provided in sub. (6), if a statute or governing
20instrument calls for property to be distributed to a group or class "per capita", the
21property is divided into as many shares as there are surviving members of the group
22or class, and each member receives one share.
AB645-ASA1,50,24
23(5) Certain individuals disregarded. For the purposes of this section, all of the
24following apply:
AB645-ASA1,51,2
1(a) An individual who is deceased and who left no surviving issue is
2disregarded.
AB645-ASA1,51,43
(b) An individual who has a surviving ancestor who is an issue of the designated
4person is not entitled to a share.
AB645-ASA1,51,8
5(6) Contrary intent. This section does not apply if the transfer is made under
6a governing instrument and there is a finding of contrary intent of the person who
7executed the governing instrument. Extrinsic evidence may be used to construe that
8intent.
AB645-ASA1,51,10
9854.05 No exoneration of encumbered property. (1) Definitions. In this
10section:
AB645-ASA1,51,1111
(a) "Debt" includes accrued interest on the debt.
AB645-ASA1,51,1312
(b) "Encumbrance" includes mortgages, liens, pledges and other security
13agreements that are encumbrances on property.
AB645-ASA1,51,17
14(2) Generally. (a) Except as provided in sub. (5), all property that is
15specifically transferred by a governing instrument shall be assigned to the
16transferee without exoneration of a debt that is secured by an encumbrance on the
17property.
AB645-ASA1,51,2018
(b) If the debt that is secured by the encumbrance on the property is paid in
19whole or in part out of other assets, the specifically transferred property shall be
20assigned to the transferee only if any of the following applies:
AB645-ASA1,51,2221
1. The transferee contributes to the person or entity that held the assets that
22were used to pay the debt an amount equal to the amount that was paid.
AB645-ASA1,51,2423
2. The person or entity secures the amount described in subd. 1. through a new
24encumbrance on the property.
AB645-ASA1,52,6
1(3) Joint tenancy; survivorship marital property. Except as provided in sub.
2(5), if all or part of a debt that is secured by an encumbrance on property in which
3the decedent at the time of death had an interest as a joint tenant or as a holder of
4survivorship marital property is paid out of other assets as the result of a claim being
5allowed, the person or entity that makes the payment is subrogated to all rights that
6the claimant had against the property.
AB645-ASA1,52,11
7(4) Insurance. Except as provided in sub. (5), if all or part of a debt that is
8secured by an encumbrance on the proceeds payable under a life insurance policy in
9which the decedent was the named insured is paid out of other assets as the result
10of a claim being allowed, the person or entity that makes the payment is subrogated
11to all rights that the claimant had against the proceeds.
AB645-ASA1,52,15
12(5) Contrary intent. This section does not apply to the extent that a governing
13instrument, either expressly or as construed from extrinsic evidence, provides
14otherwise. A general directive to pay debts does not give rise to a presumption of
15exoneration.
AB645-ASA1,52,16
16854.06 Predeceased transferee. (1) Definitions. In this section:
AB645-ASA1,52,1717
(a) "Provision in a governing instrument" includes all of the following:
AB645-ASA1,52,1918
1. A gift to an individual whether or not the individual is alive at the time of
19the execution of the instrument.
AB645-ASA1,52,2120
2. A share in a class gift only if a member of the class dies after the execution
21of the instrument.
AB645-ASA1,52,2422
3. An appointment by the decedent under any power of appointment, unless the
23issue who would take under this section could not have been appointees under the
24terms of the power.
AB645-ASA1,53,2
1(b) "Revocable provision" means a provision that the decedent had the power
2to change or revoke immediately before death.
AB645-ASA1,53,43
(c) "Stepchild" means a child of the decedent's surviving, deceased or former
4spouse, and not of the decedent.
AB645-ASA1,53,7
5(2) Scope of coverage. This section applies to revocable provisions in a
6governing instrument executed by the decedent that provide for an outright transfer
7upon the death of the decedent to any of the following persons:
AB645-ASA1,53,98
(a) A grandparent of the decedent, or issue of a grandparent, subject to s.
9854.21.
AB645-ASA1,53,1010
(b) A stepchild of the decedent, subject to s. 854.15.
AB645-ASA1,53,14
11(3) Substitute gift to issue of covered transferee. Subject to sub. (4), if a
12transferee under a provision described in sub. (2) does not survive the decedent but
13has issue who do survive, the issue of the transferee take the transfer per stirpes, as
14provided in s. 854.04 (1).
AB645-ASA1,53,17
15(4) Contrary intent. (a) This section does not apply if there is a finding of
16contrary intent of the decedent. Extrinsic evidence may be used to construe that
17intent.
AB645-ASA1,53,2218
(b) If the governing instrument designates one or more persons, classes or
19groups of people as contingent transferees, those transferees take in preference to
20those under sub. (3). But if none of the contingent transferees survives, sub. (3)
21applies to the first group in the sequence of contingent transferees that has one or
22more transferees specified in sub. (2) who left surviving issue.
AB645-ASA1,54,2
23854.07 Failed transfer and residue. (1) Except as provided in sub. (4) and
24s. 854.06, if an attempted transfer under a governing instrument fails, the attempted
1transfer becomes part of the residue of the governing instrument. This subsection
2does not apply if the attempted transfer is itself a residuary transfer.
AB645-ASA1,54,6
3(2) Except as provided in sub. (4) and s. 854.06, if the residue of a governing
4instrument is to be transferred to 2 or more persons, the share of a residuary
5transferee that fails passes to the other residuary transferees in proportion to the
6interest of each in the remaining part of the residue.
AB645-ASA1,54,9
7(3) If a governing instrument other than a will does not effectively dispose of
8an asset that is governed by the instrument, that asset shall be paid or distributed
9to the decedent's probate estate.
AB645-ASA1,54,12
10(4) This section does not apply if there is a finding of contrary intent of the
11person who executed the governing instrument. Extrinsic evidence may be used to
12construe that intent.
AB645-ASA1,54,15
13854.08 Nonademption of specific gifts in certain cases. (1) Abrogation
14of common law. The common law doctrine of ademption by extinction, as it might
15otherwise apply to the situations governed by this section, is abolished.
AB645-ASA1,54,19
16(2) Proceeds of sale. (a) Subject to sub. (6), if property that is the subject of
17a specific gift is sold by the person who executed the governing instrument within 2
18years of the person's death, the specific beneficiary has the right to the following
19amounts if available under the governing instrument:
AB645-ASA1,54,2220
1. Any balance of the purchase price unpaid at the time of death, including any
21security interest in the property and interest accruing before death, together with
22the incidents of the specific gift.
AB645-ASA1,54,2423
2. A general pecuniary transfer equivalent to the amount of the purchase price
24paid to, or for the benefit of, the person within one year of the seller's death.
AB645-ASA1,55,6
1(b) Acceptance of a promissory note of the purchaser or a 3rd party is not
2considered payment, but payment on the note is payment on the purchase price; and
3for purposes of this section property is considered sold as of the date when a valid
4contract of sale is made. Sale by an agent of the person who executed the governing
5instrument or by a trustee under a revocable living trust created by the person is a
6sale by the person for purposes of this section.
AB645-ASA1,55,11
7(3) Proceeds of insurance on property. Subject to sub. (6), if insured property
8that is the subject of a specific gift is destroyed, damaged, lost, stolen or otherwise
9subject to any casualty compensable by insurance, the specific beneficiary has the
10right to the following amounts, if available under the governing instrument, reduced
11by any amount expended or incurred to restore or repair the property:
AB645-ASA1,55,1312
(a) Any insurance proceeds paid with respect to the property after the
13decedent's death, together with the incidents of the specific gift.
AB645-ASA1,55,1514
(b) A general pecuniary transfer equivalent to any insurance proceeds paid to,
15or for the benefit of, the decedent within one year of the decedent's death.
AB645-ASA1,55,19
16(4) Condemnation award. (a) Subject to sub. (6), if property that is the subject
17of a specific gift is taken by condemnation prior to the death of the person who
18executed the governing instrument, the specific beneficiary has the right to the
19following amounts if available under the governing instrument:
AB645-ASA1,55,2020
1. Any amount of the condemnation award unpaid at the time of death.
AB645-ASA1,55,2321
2. A general pecuniary transfer equivalent to the amount of an award paid to,
22or for the benefit of, the person who executed the governing instrument within one
23year of that person's death.
AB645-ASA1,56,3
1(b) In the event of an appeal in a condemnation proceeding, the award is, for
2purposes of this section, limited to the amount established on the appeal. Acceptance
3of an agreed price or a jurisdictional offer is a sale under sub. (2).
AB645-ASA1,56,15
4(5) Sale or loss of property of an incompetent. Subject to sub. (6), if property
5that is the subject of a specific gift is sold by a guardian or conservator of the person
6who executed the governing instrument, or if a condemnation award or insurance
7proceeds are paid to a guardian or conservator, the specific beneficiary has the right
8to a general pecuniary transfer equivalent to the proceeds of the sale or the
9condemnation award, or the insurance proceeds, reduced by any amount expended
10or incurred to restore or repair the property if the funds are available under the
11governing instrument. This provision does not apply if the person who executed the
12governing instrument, subsequent to the sale or award or receipt of insurance
13proceeds, is adjudicated competent and survives such adjudication for a period of one
14year; but in such event a sale by a guardian or conservator within 2 years of that
15person's death is a sale by that person for purposes of sub. (2).
AB645-ASA1,56,16
16(6) Limitations. (a) This section is inapplicable if any of the following applies:
AB645-ASA1,56,1817
1. The governing instrument, either expressly or as construed from extrinsic
18evidence, shows the intent that a transfer fail under the particular circumstances.
AB645-ASA1,56,2119
2. The person who executed the governing instrument gives property during
20the person's lifetime to the specific beneficiary with the intent of satisfying the
21specific gift. Extrinsic evidence may be used to construe that intent.
AB645-ASA1,56,2522
(b) If part of the property that is the subject of the specific gift is destroyed,
23damaged, sold or condemned, the specific gift of any remaining interest in the
24property is not affected by this section; but this section applies to the part affected
25by the destruction, damage, sale or condemnation.
AB645-ASA1,57,5
1(c) The amount that the specific beneficiary receives under subs. (2) to (5) is
2reduced by any expenses of the sale, by the expenses of collection of the proceeds of
3insurance, sale, or condemnation award and by any amount by which the income tax
4of the decedent or the decedent's estate is increased because of items covered by this
5section. Expenses include legal fees paid or incurred.
AB645-ASA1,57,10
6854.09 Advancement; satisfaction. (1) A gift that the decedent made
7during his or her lifetime, including an incomplete gift that became complete on the
8decedent's death, is treated as a full or partial satisfaction of a transfer at death to
9an heir under s. 852.01 (1) or a transferee under a governing instrument executed
10by the decedent only if at least one of the following applies:
AB645-ASA1,57,1211
(a) The governing instrument, if any, either expressly or as construed from
12extrinsic evidence, provides that the gift be taken into account.
AB645-ASA1,57,1613
(b) The decedent declared in a document, either expressly or as construed from
14extrinsic evidence, that the gift is in satisfaction of, or an advance against, what the
15transferee would receive at the decedent's death, whether or not the document was
16contemporaneous with the gift.
AB645-ASA1,57,2017
(c) The transferee acknowledged in writing before or after the decedent's death,
18either expressly or as construed from extrinsic evidence, that the gift is in
19satisfaction of, or an advance against, what the transferee would receive at the
20decedent's death.
AB645-ASA1,57,23
21(2) For partial satisfaction, property given during life is valued as of the time
22that the transferee came into possession or enjoyment of the property or at the death
23of the person who executed the governing instrument, whichever occurs first.
AB645-ASA1,58,2
24(3) If the transferee fails to survive the person who executed the governing
25instrument, the gift is treated as a full or partial satisfaction of the transfer, unless
1the transferor has declared otherwise in a document, either expressly or as construed
2from extrinsic evidence.
AB645-ASA1,58,6
3854.10 Choice of law. The meaning and legal effect of a governing instrument
4are determined by the local law of the state selected by the transferor in the
5governing instrument, unless the application of that law is contrary to s. 861.02 or
6861.31 or any other public policy of this state otherwise applicable to the disposition.
AB645-ASA1,58,8
7854.11 Gift of securities. (1) Definition. In this section, "securities" includes
8all of the following:
AB645-ASA1,58,109
(a) Any note, stock, treasury stock, bond, debenture, evidence of indebtedness,
10collateral trust certificate, transferable share or voting trust certificate.
AB645-ASA1,58,1211
(b) Any certificate of interest or participation in an oil, gas or mining title or
12lease or in payments out of production under such a title or lease.
AB645-ASA1,58,1313
(c) Any interest or instrument commonly known as a security.
AB645-ASA1,58,1614
(d) Any certificate of interest or participation in, any temporary or interim
15certificate, receipt or certificate of deposit for, or any warrant or right to subscribe
16to or purchase, any of the instruments or interests specified in pars. (a) to (c).
AB645-ASA1,58,21
17(2) Increase in securities; accessions. Except as provided in sub. (4), if a
18person executes a governing instrument that transfers securities and at the time of
19the execution or immediately after execution the described securities are in fact
20governed by the instrument, the transfer includes additional securities that are
21governed by the instrument at the person's death if all of the following apply:
AB645-ASA1,58,2322
(a) The additional securities were acquired after the governing instrument was
23executed.
AB645-ASA1,58,2524
(b) The additional securities were acquired as a result of ownership of the
25described securities.
AB645-ASA1,59,1
1(c) The additional securities are any of the following types:
AB645-ASA1,59,32
1. Securities of the same organization acquired as a result of a plan of
3reinvestment.
AB645-ASA1,59,64
2. Securities of the same organization acquired by action initiated by the
5organization or any successor, related or acquiring organization, excluding any
6acquired by exercise of purchase options.
AB645-ASA1,59,97
3. Securities of another organization acquired as a result of a merger,
8consolidation, reorganization or other distribution by the organization or any
9successor, related or acquiring organization.
AB645-ASA1,59,15
10(3) Gift of securities construed as specific. Except as provided in sub. (4),
11a transfer of a stated number of shares or amount of securities is construed to be a
12specific gift if the same or a greater number of shares or amount of the securities was
13governed by the instrument at the time of, or immediately after, execution of the
14instrument, even if the instrument does not describe the securities more specifically
15or qualify the description by a possessive pronoun such as "my".
AB645-ASA1,59,18
16(4) Contrary intent. This section does not apply if there is a finding of contrary
17intent of the person who executed the governing instrument. Extrinsic evidence may
18be used to construe that intent.