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196. 861.07 of the statutes is repealed and recreated to read: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.
AB645-ASA1, s. 204
20Section
204. 861.31 (1) of the statutes is renumbered 861.31 (1m) and
21amended to read:
AB645-ASA1,94,322
861.31
(1m) The court may, without notice or on such notice as the court
23directs, order payment by the personal representative or special administrator of an
24allowance as it determines necessary or appropriate for the support of the surviving
25spouse and any
minor dependent children
of the decedent during the administration
1of the estate. In making or denying the order the court shall consider the size of the
2probate estate, other resources available for support, existing standard of living, and
3any other factors it considers relevant.
AB645-ASA1,94,55
861.31
(1c) In this section, "dependent child" means any of the following:
AB645-ASA1,94,66
(a) A minor child of the decedent.
AB645-ASA1,94,87
(b) An adult child of the decedent who was being supported by the decedent at
8the time of the decedent's death.
AB645-ASA1,94,1610
861.31
(2) The allowance may be made to the spouse for support of the spouse
11and any
minor dependent children
of the decedent, or separate allowances may be
12made to the spouse and to the
minor dependent children
of the decedent or their
13guardian
if the minor children do not reside with the surviving spouse or if for any
14other reason, if any, if the court finds separate allowances advisable. If there is no
15surviving spouse the allowance may be made to the
minor dependent children
of the
16decedent or to their guardian
, if any.
AB645-ASA1, s. 207
17Section
207. 861.31 (4) of the statutes is renumbered 861.31 (4) (intro.)
18amended to read:
AB645-ASA1,94,2519
861.31
(4) (intro.) The court may direct that the allowance be charged against
20income or principal, either as an advance or otherwise, but in no event may an
21allowance for support of
minor dependent children
of the decedent be charged
22against the income or principal interest of the surviving spouse. The court may direct
23that the allowance for support of the surviving spouse, not including any allowance
24for support of
minor dependent children, be applied
against any in satisfaction of any
25of the following:
AB645-ASA1,95,1
1(b) Any right of the surviving spouse to elect under
ss. s. 861.02
(1) and 861.03.
AB645-ASA1,95,33
861.31
(4) (a) Any entitlement of the surviving spouse under s. 853.11 (2).
AB645-ASA1,95,5
5861.33 (title)
Selection of personalty by surviving spouse or children.
AB645-ASA1, s. 210
6Section
210. 861.33 (1) (a) (intro.) of the statutes is amended to read:
AB645-ASA1,95,117
861.33
(1) (a) (intro.) Subject to this section, in addition to all allowances and
8distributions, the surviving spouse
, or if there is no surviving spouse the decedent's
9children, may file with the court a written selection of the following personal
10property, which shall thereupon be transferred to the spouse
or children by the
11personal representative:
AB645-ASA1,95,1413
861.33
(1) (a) 4. Other tangible personalty not used in trade, agriculture or
14other business, not to exceed
$1,000 $3,000 in inventory value.
AB645-ASA1,95,2116
861.33
(1) (b) The selection in par. (a) may not include items specifically
17bequeathed except that the surviving spouse
or children may in every case select the
18normal household furniture, furnishings and appliances necessary to maintain the
19home. For this purpose antiques, family heirlooms and collections which are
20specifically bequeathed are not classifiable as normal household furniture or
21furnishings.
AB645-ASA1,96,223
861.33
(1) (c) If there is no surviving spouse and the selection is being made
24by fewer than all of the decedent's children, the child or children selecting the
1property must have the written consent of all of the other children, or the selection
2must be approved by the court.
AB645-ASA1,96,94
861.33
(2) If it appears that claims may not be paid in full, the court may upon
5petition of any creditor limit the transfer of personalty to the spouse
or children 6under this section to items not exceeding
$3,000
$5,000 in aggregate inventory value
7until such time as claims are paid in full or the court otherwise orders; or the court
8may require the spouse
or children to retransfer property in excess of
$3,000 $5,000 9or, at the option of the spouse
or children, pay the excess in value over this amount.