AB645,83,1918
(d) Transfers of deferred marital property to the surviving spouse under s.
19861.33 or 861.41.
AB645,83,22
20(2) Valuation. (a) Property included in the augmented deferred marital
21property estate under s. 861.03 (1), (2) (c) and (4) (b) 2. is valued as of the date of the
22decedent spouse's death.
AB645,83,2423
(b) Property included under s. 861.03 (2) (a), (b) and (d) and (3) is valued
24immediately before the decedent spouse's death.
AB645,84,2
1(c) Property included under s. 861.03 (4) (b) 1. is valued as of the date that the
2right, interest or power terminated.
AB645,84,43
(d) Property included under s. 861.03 (4) (b) 3. is valued as of the date of the
4transfer.
AB645,84,75
(e) If deferred marital property is commingled with other types of property but
6the deferred marital property component can be identified, only that component is
7valued.
AB645,84,138
(f) The value of property included in the augmented deferred marital property
9estate includes the commuted value of any present or future interest in deferred
10marital property and the commuted value of deferred marital property payable
11under any trust, life insurance settlement option, annuity contract, public or private
12pension, disability compensation, death benefit or retirement plan or any similar
13arrangement.
AB645,84,18
14(3) Reduction for equitable proportion of expenses and enforceable claims. 15The value of deferred marital property included in the augmented deferred marital
16property estate under s. 861.03 or 861.04 shall be reduced by an equitable proportion
17of funeral and burial expenses, administrative expenses, other charges and fees and
18enforceable claims.
AB645,84,22
19(4) Overlapping application; no double inclusion. If the same property could
20be included in the augmented deferred marital property estate under more than one
21provision of s. 861.03 or 861.04, the property is included only once, and it is included
22under the provision that yields the greatest value.
AB645, s. 186
23Section
186. 861.06 of the statutes is created to read:
AB645,85,4
24861.06 Satisfaction of deferred marital property elective share. (1) 25Definition. In this section, "property transferred to the surviving spouse" includes
1outright transfers that have been disclaimed by the surviving spouse. The term does
2not include transfers in trust that have been disclaimed by the surviving spouse,
3unless the surviving spouse had a general power of appointment over the property
4in the trust during his or her lifetime or an interest in the trust after the disclaimer.
AB645,85,7
5(2) Initial satisfaction of deferred marital property elective share. If the
6surviving spouse makes the election under s. 861.02, the following categories of
7property are used first to satisfy the elective share amount:
AB645,85,98
(a) All property included in the augmented deferred marital property estate
9under s. 861.04.
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(b) All marital, individual, deferred marital or deferred individual property,
11transferred to the surviving spouse:
AB645,85,1512
1. From the decedent's probate estate, other than property transferred under
13s. 861.33 or 861.41, and other than property transferred to the surviving spouse
14under s. 861.31 or 861.35 except as ordered by the court under s. 861.31 (4) or 861.35
15(3).
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2. By nonprobate transfer at the decedent's death.
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3. By operation of any state or federal law, other than transfers under the U.S.
18social security system.
AB645,85,2019
4. By the decedent at any time during the decedent's life, except that the
20following shall be excluded:
AB645,85,2221
a. The first $5,000 of the value of the gifts from the decedent to the surviving
22spouse each year.
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b. Gifts received from the decedent that the surviving spouse can show were
24subsequently and gratuitously transferred in a manner that, had they been the
1deferred marital property of the surviving spouse, would not have been included in
2the augmented deferred marital property estate under s. 861.04.
AB645,86,7
3(3) Unsatisfied balance. After the property under sub. (2) has been applied
4toward satisfaction of the deferred marital property elective share amount, the
5remainder of the elective share amount shall be satisfied proportionally from
6transfers to persons other than the surviving spouse of property included in the
7augmented deferred marital property estate under s. 861.03 (1), (2), (3) or (4) (b) 2.
AB645,86,12
8(4) Remaining unsatisfied balance. After the property under subs. (2) and (3)
9has been applied toward satisfaction of the deferred marital property elective share
10amount, the remainder of the elective share amount shall be satisfied proportionally
11from transfers to persons other than the surviving spouse of property included in the
12augmented deferred marital property estate under s. 861.03 (4) (b) 1. or 3.
AB645,86,16
13(5) Equitable adjustment of shares. If all or part of a prorated share under
14sub. (2), (3) or (4) is uncollectible, the court may increase the prorated liability of
15recipients described under the same or another of the 3 subsections if all of the
16following conditions are satisfied:
AB645,86,1817
(a) The court finds that an equitable adjustment is necessary to avoid hardship
18for the surviving spouse.
AB645,86,2019
(b) No recipient or donee of a recipient is liable for an amount greater than the
20value of the deferred marital property subject to the election that was received.
AB645, s. 187
21Section
187. 861.07 of the statutes is repealed and recreated to read:
AB645,86,23
22861.07 Personal liability of recipients. (1) Definition. In this section,
23"proceeds" includes:
AB645,86,2524
(a) The consideration, in money or property, received in exchange for the
25property that is the subject of the transfer.
AB645,87,2
1(b) Property acquired with the consideration received in exchange for the
2property that is the subject of the transfer.
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3(2) Persons liable. The following persons are liable to make a prorated
4contribution toward satisfaction of the surviving spouse's deferred marital property
5elective share:
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(a) Original recipients of the decedent's transfers of deferred marital property
7to others, irrespective of whether the recipient has the property or its proceeds.
AB645,87,118
(b) Donees of the recipients under par. (a) if the donees have the property or its
9proceeds. If a donee has neither the property nor its proceeds but knew or should
10have known of the liability under this section, the donee remains liable for his or her
11share of the prorated contribution.
AB645,87,14
12(3) Mode of satisfaction. (a) Subject to par. (b), a person who is liable under
13sub. (2) may either give up the proportional part of the decedent's transfers to him
14or her or pay the value of the amount for which he or she is liable.
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(b) On petition of the surviving spouse showing that the mode of satisfaction
16chosen in par. (a) will create a hardship for the surviving spouse, the court may order
17that a different mode of satisfaction be used.
AB645,87,23
18(4) Effect of federal preemption. If any provision of this subchapter is
19preempted by federal law with respect to any property interest or benefit that is
20included under s. 861.03 and that would pass but for that preemption to a person
21other than the surviving spouse, the recipient, unless he or she is a recipient for
22value, shall return it or its value to the person who would have been entitled to it were
23that provision not preempted.
AB645, s. 188
24Section
188. 861.08 of the statutes is created to read:
AB645,88,4
1861.08 Proceeding for election; time limit. (1) Generally. Except as the
2time may be extended under sub. (3), in order to make the election, the surviving
3spouse shall, within 6 months after the date of the decedent's death, do all of the
4following:
AB645,88,55
(a) File a petition for the election with whichever of the following applies:
AB645,88,76
1. The court that has jurisdiction of the probate proceedings relating to the
7decedent's estate if a judicial proceeding has been commenced.
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2. The court that has jurisdiction of probate proceedings relating to decedents'
9estates located in the county of the decedent's residence if no judicial proceeding has
10commenced.
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(b) Mail or deliver a copy of the petition to the personal representative, if any,
12of the decedent's estate.
AB645,88,15
13(2) Notification of interested parties. The surviving spouse shall give notice,
14in the manner provided in ch. 879, of the time and place set for hearing the petition
15to any persons who may be adversely affected by the election.
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16(3) Extension of time for election. (a) Subject to par. (b), the court may grant
17the surviving spouse an extension for making an election if the surviving spouse
18petitions the court for an extension, gives notice as specified in sub. (2) and shows
19cause for an extension.
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(b) The petition for extension of the time for making an election must be filed
21within 6 months after the decedent's death, unless the court finds all of the following:
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1. That the surviving spouse was prevented from filing the action or naming
23a particular interested party for reasons beyond his or her control.
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2. That failure to extend the time for making an election will result in hardship
25for the surviving spouse.
AB645,89,3
1(4) Withdrawal of election. The surviving spouse may withdraw the petition
2for an election at any time before the probate court has entered the final
3determination of the distribution of the decedent's estate.
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4(5) Court determination of liability. (a) After notice and hearing, the court
5shall determine the deferred marital property elective share amount and shall
6determine the property that satisfies that amount under ss. 861.06 and 861.07.
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(b) If the personal representative does not hold the money or property included
8in the augmented deferred marital property estate, the court shall determine the
9liability of any person or entity that has any interest in the money or property or that
10holds that money or property.
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(c) The surviving spouse may choose to seek relief from fewer than all
12recipients. However, any such action shall not cause any other recipient's liability
13to exceed the amount that he or she would have had to pay if all recipients had paid
14a prorated share.
AB645,89,16
15(6) Suits authorized. An order or judgment of the court may be enforced in a
16suit for contribution or payment in other courts of this state or other jurisdictions.
AB645, s. 189
17Section
189. 861.09 of the statutes is repealed and recreated to read:
AB645,89,22
18861.09 Right of election by or on behalf of surviving spouse. The
19surviving spouse must be living in order for an election to be filed. If the surviving
20spouse does not personally file the election, it may be filed on the surviving spouse's
21behalf by the spouse's conservator, guardian or guardian ad litem, or by an agent of
22the spouse acting under a power of attorney.
AB645, s. 190
23Section
190. 861.10 of the statutes is created to read:
AB645,90,4
24861.10 Waiver of right to elect; failure to elect. (1) Right to elect may be
25waived. The right to elect a deferred marital property elective share may be waived
1by the surviving spouse in whole or in part. The waiver may take place before or after
2marriage. The waiver shall be contained in a marital property agreement that is
3enforceable under s. 766.58 or in a signed document filed with a court described in
4s. 861.08 (1) (a) after the decedent's death.
AB645,90,9
5(2) Waiver of "all rights". Unless the waiver provides otherwise, a waiver of
6"all rights", or equivalent language, in the property or estate of a present or
7prospective spouse, or in a complete property settlement entered into because of
8separation or divorce, is a waiver of all rights in the deferred marital property
9elective share.
AB645,90,12
10(3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of
11property and is not a gift from the surviving spouse to the decedent spouse's probate
12estate or to the beneficiaries of other transfers.
AB645, s. 191
13Section
191. 861.11 of the statutes is repealed and recreated to read:
AB645,90,19
14861.11 Protection of payers and other 3rd parties. (1) Payer not liable
15until notice received. (a) Upon a beneficiary's request for payment, a payer or other
163rd party who has received satisfactory proof of the decedent's death and who has not
17received written notice that the surviving spouse or his or her representative intends
18to file a petition for the deferred marital property elective share or that a petition for
19the election has been filed is not liable for any of the following:
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1. Causing any payment, item of property or other benefit included in the
21augmented deferred marital property estate under s. 861.03, to transfer directly to
22the beneficiary designated in a governing instrument.
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2. Any other action in good faith reliance on the validity of a governing
24instrument.
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1(b) A payer or other 3rd party is liable for payments made or other actions taken
2after receipt of written notice of the intent to file a petition for the elective share or
3written notice that a petition for the elective share has been filed.
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4(2) Method of notice to payers. A written notice of the intent to file a petition
5for the election or written notice that a petition for the election has been filed shall
6fulfill one of the following requirements:
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(a) Be mailed to the payer's or other 3rd party's main office or home by
8registered or certified mail, return receipt requested.
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(b) Be served upon the payer or other 3rd party in the same manner as a
10summons in a civil action.
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11(3) Optional payment of proceeds to court. (a) Upon receipt of written notice
12of the intent to file, or the filing of, a petition for the election, a payer or other 3rd
13party may pay any amount owed or transfer or deposit any item of property to or with
14whichever of the following applies:
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1. The court that has jurisdiction of the probate proceedings relating to the
16decedent's estate if proceedings have been commenced.
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2. The court that has jurisdiction of probate proceedings relating to decedents'
18estates located in the county of the decedent's residence, if no judicial proceeding has
19commenced.
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(b) Payments, transfers or deposits made to the court discharge the payer or
21other 3rd party from all claims for amounts paid or the value of property transferred
22or deposited.
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(c) The court shall hold the funds or items of property. After the court makes
24its determination under s. 861.08 (5), it shall order disbursement in accordance with
1that determination. The court shall order disbursement to the beneficiary
2designated in the governing instrument if either of the following conditions applies:
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1. No petition is filed in the court within the specified time under s. 861.08 (1).
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2. A petition was filed but withdrawn under s. 861.08 (4) with prejudice.
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(d) If payments have been made to the court or if property has been deposited
6with the court under par. (a), the court may order that all or part of the payments or
7property be paid to the beneficiary who is designated in the governing instrument,
8upon that beneficiary's petition to the court. Those payments shall be in an amount
9and subject to conditions consistent with this subchapter.
AB645, s. 193
11Section
193. Subchapter III (title) of chapter 861 [precedes 861.17] of the
12statutes is created to read:
AB645,92,1313
Chapter 861
AB645,92,1614
Subchapter III
15
Other rights,
16
Allowances and exemptions
AB645, s. 194
17Section
194. 861.21 of the statutes is created to read:
AB645,92,19
18861.21 Assignment of home to surviving spouse. (1) Definitions. In this
19section:
AB645,92,2020
(a) "Governing instrument" has the meaning given in s. 854.01.
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(b) "Home" means any dwelling in which the decedent had an interest and that
22at the time of the decedent's death the surviving spouse occupies or intends to occupy.
23If there are several such dwellings, any one may be designated by the surviving
24spouse. "Home" includes a house, a mobile home, a duplex or multiple apartment
25building one unit of which is occupied by the surviving spouse and a building used
1in part for a dwelling and in part for commercial or business purposes. "Home"
2includes all of the surrounding land, unless the court sets off part of the land as
3severable from the remaining land under sub. (5).
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4(2) If marital property interest in home. Subject to subs. (4) and (5), if a
5married decedent has a marital property interest in a home, the decedent's entire
6interest in the home shall be assigned to the surviving spouse if the surviving spouse
7petitions the court requesting such a distribution and if a governing instrument does
8not provide a specific transfer of the decedent's interest in the home to someone other
9than the surviving spouse. The surviving spouse shall file the petition within 6
10months after the decedent's death, unless the court extends the time for filing.
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11(3) If interest in home in intestate estate. Subject to subs. (4) and (5), if the
12intestate estate includes an interest in a home, the decedent's entire interest shall
13be assigned to the surviving spouse if the surviving spouse petitions the court
14requesting such a distribution. The surviving spouse shall file the petition within
156 months after the decedent's death, unless the court extends the time for filing.
AB645,93,22
16(4) Payment by surviving spouse. The court shall assign the interest in the
17home to the surviving spouse upon payment of the value of the interest that does not
18pass to the surviving spouse under intestacy or under the governing instrument.
19Payment shall be made to the fiduciary holding title to the interest. The surviving
20spouse may use assets due him or her from the fiduciary to satisfy all or part of the
21payment in kind. Unless the court extends the time, the surviving spouse shall have
22one year from the decedent's death to pay the value of the assigned interest.
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23(5) Severance of home from surrounding land. On petition of the surviving
24spouse or of any interested person that part of the land is not necessary for dwelling
25purposes and that it would be inappropriate to assign all of the surrounding land as
1the home, the court may set off for the home as much of the land as is necessary for
2a dwelling. In determining how much land should be set off, the court shall take into
3account the use and marketability of the parcels set off as the home and the
4remaining land.
AB645, s. 195
5Section
195. 861.31 (1) of the statutes is renumbered 861.31 (1m) and
6amended to read:
AB645,94,137
861.31
(1m) The court may, without notice or on such notice as the court
8directs, order payment by the personal representative or special administrator of an
9allowance as it determines necessary or appropriate for the support of the surviving
10spouse and any
minor dependent children
of the decedent during the administration
11of the estate. In making or denying the order the court shall consider the size of the
12probate estate, other resources available for support, existing standard of living, and
13any other factors it considers relevant.
AB645, s. 196
14Section
196. 861.31 (1c) of the statutes is created to read:
AB645,94,1515
861.31
(1c) In this section, "dependent child" means any of the following: