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.
AB645-ASA1,90,3
1(3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of
2property and is not a gift from the surviving spouse to the decedent spouse's probate
3estate or to the beneficiaries of other transfers.
AB645-ASA1, s. 200
4Section
200. 861.11 of the statutes is repealed and recreated to read:
AB645-ASA1,90,10
5861.11 Protection of payers and other 3rd parties. (1) Payer not liable
6until notice received. (a) Upon a beneficiary's request for payment, a payer or other
73rd party who has received satisfactory proof of the decedent's death and who has not
8received written notice that the surviving spouse or his or her representative intends
9to file a petition for the deferred marital property elective share or that a petition for
10the election has been filed is not liable for any of the following:
AB645-ASA1,90,1311
1. Causing any payment, item of property or other benefit included in the
12augmented deferred marital property estate under s. 861.03, to transfer directly to
13the beneficiary designated in a governing instrument.
AB645-ASA1,90,1514
2. Any other action in good faith reliance on the validity of a governing
15instrument.
AB645-ASA1,90,1816
(b) A payer or other 3rd party is liable for payments made or other actions taken
17after receipt of written notice of the intent to file a petition for the elective share or
18written notice that a petition for the elective share has been filed.
AB645-ASA1,90,21
19(2) Method of notice to payers. A written notice of the intent to file a petition
20for the election or written notice that a petition for the election has been filed shall
21fulfill one of the following requirements:
AB645-ASA1,90,2322
(a) Be mailed to the payer's or other 3rd party's main office or home by
23registered or certified mail, return receipt requested.
AB645-ASA1,90,2524
(b) Be served upon the payer or other 3rd party in the same manner as a
25summons in a civil action.
AB645-ASA1,91,4
1(3) Optional payment of proceeds to court. (a) Upon receipt of written notice
2of the intent to file, or the filing of, a petition for the election, a payer or other 3rd
3party may pay any amount owed or transfer or deposit any item of property to or with
4whichever of the following applies:
AB645-ASA1,91,65
1. The court that has jurisdiction of the probate proceedings relating to the
6decedent's estate if proceedings have been commenced.
AB645-ASA1,91,97
2. The court that has jurisdiction of probate proceedings relating to decedents'
8estates located in the county of the decedent's residence, if no judicial proceeding has
9commenced.
AB645-ASA1,91,1210
(b) Payments, transfers or deposits made to the court discharge the payer or
11other 3rd party from all claims for amounts paid or the value of property transferred
12or deposited.
AB645-ASA1,91,1613
(c) The court shall hold the funds or items of property. After the court makes
14its determination under s. 861.08 (5), it shall order disbursement in accordance with
15that determination. The court shall order disbursement to the beneficiary
16designated in the governing instrument if either of the following conditions applies:
AB645-ASA1,91,1717
1. No petition is filed in the court within the specified time under s. 861.08 (1).
AB645-ASA1,91,1818
2. A petition was filed but withdrawn under s. 861.08 (4) with prejudice.
AB645-ASA1,91,2319
(d) If payments have been made to the court or if property has been deposited
20with the court under par. (a), the court may order that all or part of the payments or
21property be paid to the beneficiary who is designated in the governing instrument,
22upon that beneficiary's petition to the court. Those payments shall be in an amount
23and subject to conditions consistent with this subchapter.
AB645-ASA1, s. 202
1Section
202. Subchapter III (title) of chapter 861 [precedes 861.17] of the
2statutes is created to read:
AB645-ASA1,92,64
Subchapter III
5
Other rights,
6
Allowances and exemptions
AB645-ASA1,92,9
8861.21 Assignment of home to surviving spouse. (1) Definitions. In this
9section:
AB645-ASA1,92,1010
(a) "Governing instrument" has the meaning given in s. 854.01.
AB645-ASA1,92,1811
(b) "Home" means any dwelling in which the decedent had an interest and that
12at the time of the decedent's death the surviving spouse occupies or intends to occupy.
13If there are several such dwellings, any one may be designated by the surviving
14spouse. "Home" includes a house, a mobile home, a duplex or multiple apartment
15building one unit of which is occupied by the surviving spouse and a building used
16in part for a dwelling and in part for commercial or business purposes. "Home"
17includes all of the surrounding land, unless the court sets off part of the land as
18severable from the remaining land under sub. (5).
AB645-ASA1,92,25
19(2) If marital property interest in home. Subject to subs. (4) and (5), if a
20married decedent has a marital property interest in a home, the decedent's entire
21interest in the home shall be assigned to the surviving spouse if the surviving spouse
22petitions the court requesting such a distribution and if a governing instrument does
23not provide a specific transfer of the decedent's interest in the home to someone other
24than the surviving spouse. The surviving spouse shall file the petition within 6
25months after the decedent's death, unless the court extends the time for filing.
AB645-ASA1,93,5
1(3) If interest in home in intestate estate. Subject to subs. (4) and (5), if the
2intestate estate includes an interest in a home, the decedent's entire interest shall
3be assigned to the surviving spouse if the surviving spouse petitions the court
4requesting such a distribution. The surviving spouse shall file the petition within
56 months after the decedent's death, unless the court extends the time for filing.
AB645-ASA1,93,12
6(4) Payment by surviving spouse. The court shall assign the interest in the
7home to the surviving spouse upon payment of the value of the interest that does not
8pass to the surviving spouse under intestacy or under the governing instrument.
9Payment shall be made to the fiduciary holding title to the interest. The surviving
10spouse may use assets due him or her from the fiduciary to satisfy all or part of the
11payment in kind. Unless the court extends the time, the surviving spouse shall have
12one year from the decedent's death to pay the value of the assigned interest.
AB645-ASA1,93,19
13(5) Severance of home from surrounding land. On petition of the surviving
14spouse or of any interested person that part of the land is not necessary for dwelling
15purposes and that it would be inappropriate to assign all of the surrounding land as
16the home, the court may set off for the home as much of the land as is necessary for
17a dwelling. In determining how much land should be set off, the court shall take into
18account the use and marketability of the parcels set off as the home and the
19remaining land.