AB645-ASA1,78,19
18(6) Waiver. Waiver of the deferred marital property elective share is governed
19by s. 861.10.
AB645-ASA1,78,23
20(7) Applicability of election. (a) Unless the right has been waived under s.
21861.10 or other limitations of this subchapter apply, the surviving spouse is eligible
22to make the election if at the time of the decedent's death the decedent is domiciled
23in this state.
AB645-ASA1,79,3
1(b) If a decedent who is not domiciled in this state owns real property in this
2state, the right of the surviving spouse to take an elective share in that property is
3governed by s. 861.20.
AB645-ASA1,79,9
4(8) Special provision if surviving spouse caused death of decedent. If the
5surviving spouse unlawfully and intentionally kills the decedent, as determined
6under s. 854.14 (5), the estate of the decedent shall have the right to elect no more
7than 50% of the augmented deferred marital property estate as determined under
8sub. (2). The court shall construe the provisions of ss. 861.03 to 861.11 as necessary
9to achieve the intent of this paragraph.
AB645-ASA1, s. 192
10Section
192. 861.03 of the statutes is repealed and recreated to read:
AB645-ASA1,79,13
11861.03 Augmented deferred marital property estate: decedent's
12probate property and nonprobate or other property transfers. Subject to s.
13861.05, the augmented deferred marital property estate includes all of the following:
AB645-ASA1,79,15
14(1) Deferred marital property in decedent's probate estate. The value of
15deferred marital property in the decedent's probate estate.
AB645-ASA1,79,19
16(2) Deferred marital property passing nonprobate at decedent's death. The
17value of deferred marital property owned or owned in substance by the decedent
18immediately before death that passed outside probate at the decedent's death,
19including the following:
AB645-ASA1,79,2120
(a) The decedent's fractional interest in deferred marital property that was
21held by the decedent with the right of survivorship.
AB645-ASA1,79,2522
(b) The decedent's ownership interest in deferred marital property that was
23held by the decedent in a form payable or transferable on death, including deferred
24employment benefit plans, individual retirement accounts, annuities and transfers
25under s. 766.58 (3) (f), or in coownership with the right of survivorship.
AB645-ASA1,80,5
1(c) Deferred marital property in the form of proceeds of insurance on the life
2of the decedent, including accidental death benefits, that were payable at the
3decedent's death, if the decedent owned the insurance policy immediately before
4death or if the decedent alone and immediately before death held a presently
5exercisable general power of appointment over the policy or its proceeds.
AB645-ASA1,80,96
(d) Deferred marital property over which the decedent alone, immediately
7before death, held a presently exercisable general power of appointment, to the
8extent that the property passed at the decedent's death by exercise, release, lapse,
9default or otherwise.
AB645-ASA1,80,13
10(3) Deferred marital property transferred with retained rights or benefits. 11(a) The augmented deferred marital property estate includes the value of any
12deferred marital property transferred by the decedent in which the decedent
13retained rights or benefits, including but not limited to the following:
AB645-ASA1,80,1714
1. Deferred marital property in which the decedent retained the right to
15possession, use, enjoyment or income and that was irrevocably transferred, to the
16extent that the decedent's right terminated at or continued beyond the decedent's
17death.
AB645-ASA1,80,2318
2. Deferred marital property in which the decedent retained the right, either
19alone or in conjunction with any person, to designate the persons who shall possess
20or enjoy the property or the income therefrom, to control the time at which
21designated persons shall possess or enjoy the property or income therefrom, or to
22alter or amend the terms of the transfer of the property, to the extent that the
23decedent's right terminated at or continued beyond the decedent's death.
AB645-ASA1,81,524
3. Any transfer of deferred marital property, including transfer of an income
25interest, in which the decedent created a power of appointment, including the power
1to revoke or terminate the transfer or to consume, invade or dispose of the principal
2or income, if the power was exercisable by the decedent alone, by the decedent in
3conjunction with another person or by a nonadverse party, and if the power is for the
4benefit of the decedent, creditors of the decedent, the decedent's estate or creditors
5of the decedent's estate.
AB645-ASA1,81,126
(b) The amount included under par. (a) 3. is the value of the property subject
7to the power of appointment if the power of appointment is over property, the value
8of the property that produces or produced the income if the power of appointment is
9over income or the power valued at the higher amount if the power of appointment
10is over both income and property. The value is limited by the extent to which the
11power of appointment was exercisable at the decedent's death or the property passed
12at the decedent's death by exercise, release, lapse, default or otherwise.
AB645-ASA1,81,14
13(4) Deferred marital property transferred within 2
years prior to death.
14(a) In this subsection, termination occurs:
AB645-ASA1,81,1715
1. With respect to a right or interest in property, when the right or interest
16terminates by the terms of the governing instrument or when the decedent transfers
17or relinquishes the right or interest.
AB645-ASA1,81,1918
2. With respect to a power of appointment over property, when the power
19terminates by exercise, release, lapse, default or otherwise.
AB645-ASA1,81,2120
3. With respect to a power of appointment under sub. (2) (d), when the power
21terminates by exercise or release.
AB645-ASA1,81,2422
(b) The augmented deferred marital property estate includes the value of any
23deferred marital property transferred by the decedent within the 2 years
24immediately preceding the decedent's death, including the following:
AB645-ASA1,82,6
11. Deferred marital property that passed as a result of the termination of a right
2or interest in, or power of appointment over, property that would have been included
3in the augmented deferred marital property estate under subs. (2) (a), (b) or (d) or
4(3), if the right, interest or power had not terminated until the decedent's death. The
5amount included is the value of the property that would have been included if the
6property were valued at the time the right, interest or power terminated.
AB645-ASA1,82,117
2. Transfers by the decedent of or relating to the deferred marital property
8component of an insurance policy on the life of the decedent, if the proceeds would
9have been included under sub. (2) (c) had the transfer not occurred. The amount
10included is the value of the insurance proceeds to the extent that they were payable
11at the decedent's death.
AB645-ASA1,82,1612
3. Any transfer of deferred marital property to the extent that it is not
13otherwise included in the augmented deferred marital property estate. The amount
14included is the value of the property at the time of the transfer, but only to the extent
15that the aggregate transfers to any one donee in either of the 2 years exceeded
16$10,000.
AB645-ASA1,82,22
18861.04 Augmented deferred marital property estate: surviving
19spouse's property and transfers to others. (1) Subject to s. 861.05, the
20augmented deferred marital property estate includes the value of any deferred
21marital property that would have been included under s. 861.03 had the surviving
22spouse been the decedent.
AB645-ASA1,82,25
23(2) Valuation of an interest under this section shall take into account the fact
24that the decedent predeceased the spouse. Subject to s. 861.05 (2), the surviving
25spouse shall be treated as having died on the date of the decedent's death.
AB645-ASA1, s. 194
1Section
194. 861.05 of the statutes is repealed and recreated to read:
AB645-ASA1,83,4
2861.05 Augmented deferred marital property estate: calculation of
3property interests. (1) Exclusions. The following are not included in the
4augmented deferred marital property estate:
AB645-ASA1,83,65
(a) Transfers of deferred marital property to the extent that the decedent
6received full or partial consideration for the transfer in money or money's worth.
AB645-ASA1,83,77
(b) Transfers under the U.S. social security system.
AB645-ASA1,83,98
(c) Transfers of deferred marital property to persons other than the surviving
9spouse, with the written joinder or written consent of the surviving spouse.
AB645-ASA1,83,1110
(d) Transfers of deferred marital property to the surviving spouse under s.
11861.33 or 861.41.
AB645-ASA1,83,14
12(2) Valuation. (a) Property included in the augmented deferred marital
13property estate under s. 861.03 (1), (2) (c) and (4) (b) 2. is valued as of the date of the
14decedent spouse's death.
AB645-ASA1,83,1615
(b) Property included under s. 861.03 (2) (a), (b) and (d) and (3) is valued
16immediately before the decedent spouse's death.
AB645-ASA1,83,1817
(c) Property included under s. 861.03 (4) (b) 1. is valued as of the date that the
18right, interest or power terminated.
AB645-ASA1,83,2019
(d) Property included under s. 861.03 (4) (b) 3. is valued as of the date of the
20transfer.
AB645-ASA1,83,2321
(e) If deferred marital property is commingled with other types of property but
22the deferred marital property component can be identified, only that component is
23valued.
AB645-ASA1,84,424
(f) The value of property included in the augmented deferred marital property
25estate includes the commuted value of any present or future interest in deferred
1marital property and the commuted value of deferred marital property payable
2under any trust, life insurance settlement option, annuity contract, public or private
3pension, disability compensation, death benefit or retirement plan or any similar
4arrangement.
AB645-ASA1,84,9
5(3) Reduction for equitable proportion of expenses and enforceable claims. 6The value of deferred marital property included in the augmented deferred marital
7property estate under s. 861.03 or 861.04 shall be reduced by an equitable proportion
8of funeral and burial expenses, administrative expenses, other charges and fees and
9enforceable claims.
AB645-ASA1,84,13
10(4) Overlapping application; no double inclusion. If the same property could
11be included in the augmented deferred marital property estate under more than one
12provision of s. 861.03 or 861.04, the property is included only once, and it is included
13under the provision that yields the greatest value.
AB645-ASA1,84,20
15861.06 Satisfaction of deferred marital property elective share. (1) 16Definition. In this section, "property transferred to the surviving spouse" includes
17outright transfers that have been disclaimed by the surviving spouse. The term does
18not include transfers in trust that have been disclaimed by the surviving spouse,
19unless the surviving spouse had a general power of appointment over the property
20in the trust during his or her lifetime or an interest in the trust after the disclaimer.
AB645-ASA1,84,23
21(2) Initial satisfaction of deferred marital property elective share. If the
22surviving spouse makes the election under s. 861.02, the following categories of
23property are used first to satisfy the elective share amount:
AB645-ASA1,84,2524
(a) All property included in the augmented deferred marital property estate
25under s. 861.04.
AB645-ASA1,85,2
1(b) All marital, individual, deferred marital or deferred individual property,
2transferred to the surviving spouse:
AB645-ASA1,85,63
1. From the decedent's probate estate, other than property transferred under
4s. 861.33 or 861.41, and other than property transferred to the surviving spouse
5under s. 861.31 or 861.35 except as ordered by the court under s. 861.31 (4) or 861.35
6(4).
AB645-ASA1,85,77
2. By nonprobate transfer at the decedent's death.
AB645-ASA1,85,98
3. By operation of any state or federal law, other than transfers under the U.S.
9social security system.
AB645-ASA1,85,1110
4. By the decedent at any time during the decedent's life, except that the
11following shall be excluded:
AB645-ASA1,85,1312
a. The first $5,000 of the value of the gifts from the decedent to the surviving
13spouse each year.
AB645-ASA1,85,1714
b. Gifts received from the decedent that the surviving spouse can show were
15subsequently and gratuitously transferred in a manner that, had they been the
16deferred marital property of the surviving spouse, would not have been included in
17the augmented deferred marital property estate under s. 861.04.
AB645-ASA1,85,22
18(3) Unsatisfied balance. After the property under sub. (2) has been applied
19toward satisfaction of the deferred marital property elective share amount, the
20remainder of the elective share amount shall be satisfied proportionally from
21transfers to persons other than the surviving spouse of property included in the
22augmented deferred marital property estate under s. 861.03 (1), (2), (3) or (4) (b) 2.
AB645-ASA1,86,2
23(4) Remaining unsatisfied balance. After the property under subs. (2) and (3)
24has been applied toward satisfaction of the deferred marital property elective share
25amount, the remainder of the elective share amount shall be satisfied proportionally
1from transfers to persons other than the surviving spouse of property included in the
2augmented deferred marital property estate under s. 861.03 (4) (b) 1. or 3.
AB645-ASA1,86,6
3(5) Equitable adjustment of shares. If all or part of a prorated share under
4sub. (2), (3) or (4) is uncollectible, the court may increase the prorated liability of
5recipients described under the same or another of the 3 subsections if all of the
6following conditions are satisfied:
AB645-ASA1,86,87
(a) The court finds that an equitable adjustment is necessary to avoid hardship
8for the surviving spouse.
AB645-ASA1,86,109
(b) No recipient or donee of a recipient is liable for an amount greater than the
10value of the deferred marital property subject to the election that was received.
AB645-ASA1, s. 196
11Section
196. 861.07 of the statutes is repealed and recreated to read:
AB645-ASA1,86,13
12861.07 Personal liability of recipients. (1) Definition. In this section,
13"proceeds" includes:
AB645-ASA1,86,1514
(a) The consideration, in money or property, received in exchange for the
15property that is the subject of the transfer.
AB645-ASA1,86,1716
(b) Property acquired with the consideration received in exchange for the
17property that is the subject of the transfer.
AB645-ASA1,86,20
18(2) Persons liable. The following persons are liable to make a prorated
19contribution toward satisfaction of the surviving spouse's deferred marital property
20elective share:
AB645-ASA1,86,2221
(a) Original recipients of the decedent's transfers of deferred marital property
22to others, irrespective of whether the recipient has the property or its proceeds.
AB645-ASA1,87,223
(b) Donees of the recipients under par. (a) if the donees have the property or its
24proceeds. If a donee has neither the property nor its proceeds but knew or should
1have known of the liability under this section, the donee remains liable for his or her
2share of the prorated contribution.
AB645-ASA1,87,5
3(3) Mode of satisfaction. (a) Subject to par. (b), a person who is liable under
4sub. (2) may either give up the proportional part of the decedent's transfers to him
5or her or pay the value of the amount for which he or she is liable.
AB645-ASA1,87,86
(b) On petition of the surviving spouse showing that the mode of satisfaction
7chosen in par. (a) will create a hardship for the surviving spouse, the court may order
8that a different mode of satisfaction be used.
AB645-ASA1,87,13
9(4) Effect of federal preemption. If any provision of this subchapter is
10preempted by federal law with respect to any property interest or benefit that is
11included under s. 861.03 and that would pass but for that preemption to a person
12other than the surviving spouse, the recipient, unless he or she is a recipient for
13value, is subject to subs. (1) to (3).
AB645-ASA1,87,18
15861.08 Proceeding for election; time limit. (1) Generally. Except as the
16time may be extended under sub. (3), in order to make the election, the surviving
17spouse shall, within 6 months after the date of the decedent's death, do all of the
18following:
AB645-ASA1,87,1919
(a) File a petition for the election with whichever of the following applies:
AB645-ASA1,87,2120
1. The court that has jurisdiction of the probate proceedings relating to the
21decedent's estate if a judicial proceeding has been commenced.
AB645-ASA1,87,2422
2. The court that has jurisdiction of probate proceedings relating to decedents'
23estates located in the county of the decedent's residence if no judicial proceeding has
24commenced.
AB645-ASA1,88,2
1(b) Mail or deliver a copy of the petition to the personal representative, if any,
2of the decedent's estate.
AB645-ASA1,88,5
3(2) Notification of interested parties. The surviving spouse shall give notice,
4in the manner provided in ch. 879, of the time and place set for hearing the petition
5to any persons who may be adversely affected by the election.
AB645-ASA1,88,9
6(3) Extension of time for election. (a) Subject to par. (b), the court may grant
7the surviving spouse an extension for making an election if the surviving spouse
8petitions the court for an extension, gives notice as specified in sub. (2) and shows
9cause for an extension.
AB645-ASA1,88,1110
(b) The petition for extension of the time for making an election must be filed
11within 6 months after the decedent's death, unless the court finds all of the following:
AB645-ASA1,88,1312
1. That the surviving spouse was prevented from filing the action or naming
13a particular interested party for reasons beyond his or her control.
AB645-ASA1,88,1514
2. That failure to extend the time for making an election will result in hardship
15for the surviving spouse.
AB645-ASA1,88,18
16(4) Withdrawal of election. The surviving spouse may withdraw the petition
17for an election at any time before the probate court has entered the final
18determination of the distribution of the decedent's estate.
AB645-ASA1,88,21
19(5) Court determination of liability. (a) After notice and hearing, the court
20shall determine the deferred marital property elective share amount and shall
21determine the property that satisfies that amount under ss. 861.06 and 861.07.
AB645-ASA1,88,2522
(b) If the personal representative does not hold the money or property included
23in the augmented deferred marital property estate, the court shall determine the
24liability of any person or entity that has any interest in the money or property or that
25holds that money or property.
AB645-ASA1,89,4
1(c) The surviving spouse may choose to seek relief from fewer than all
2recipients. However, any such action shall not cause any other recipient's liability
3to exceed the amount that he or she would have had to pay if all recipients had paid
4a prorated share.
AB645-ASA1,89,6
5(6) Suits authorized. An order or judgment of the court may be enforced in a
6suit for contribution or payment in other courts of this state or other jurisdictions.
AB645-ASA1, s. 198
7Section
198. 861.09 of the statutes is repealed and recreated to read:
AB645-ASA1,89,12
8861.09 Right of election by or on behalf of surviving spouse. The
9surviving spouse must be living in order for an election to be filed. If the surviving
10spouse does not personally file the election, it may be filed on the surviving spouse's
11behalf by the spouse's conservator, guardian or guardian ad litem, or by an agent of
12the spouse acting under a power of attorney.
AB645-ASA1,89,19
14861.10 Waiver of right to elect; failure to elect. (1) Right to elect may be
15waived. The right to elect a deferred marital property elective share may be waived
16by the surviving spouse in whole or in part. The waiver may take place before or after
17marriage. The waiver shall be contained in a marital property agreement that is
18enforceable under s. 766.58 or in a signed document filed with a court described in
19s. 861.08 (1) (a) after the decedent's death.
AB645-ASA1,89,24
20(2) Waiver of "all rights". Unless the waiver provides otherwise, a waiver of
21"all rights", or equivalent language, in the property or estate of a present or
22prospective spouse, or in a complete property settlement entered into because of
23separation or divorce, is a waiver of all rights in the deferred marital property
24elective share.