AB1038, s. 160
12Section
160. 854.21 (1) (a) 1., 2. and 3. of the statutes are repealed.
AB1038, s. 161
13Section
161. 854.21 (1) (b) of the statutes is amended to read:
AB1038,52,1914
854.21
(1) (b) Except as provided in sub. (7), a gift
under par. (a) of property by
15a governing instrument to a class of persons described as "issue," "lawful issue,"
16"children," "grandchildren," "descendants," "heirs," "heirs of the body," "next of kin,"
17"distributees," or the like excludes a birth child and his or her issue otherwise within
18the class if the birth child has been adopted and would cease to be
treated as a child
19of the birth parent under s. 854.20 (2).
AB1038, s. 162
20Section
162. 854.21 (7) of the statutes is amended to read:
AB1038,52,2521
854.21
(7) Contrary intent. This section does not apply if If the transfer is
22made under a governing instrument and
there is a finding of contrary intent of the
23person who executed the governing instrument
had an intent contrary to any
24provision in this section, then that provision is inapplicable to the transfer. Extrinsic
25evidence may be used to construe
that the intent.
AB1038, s. 163
1Section
163. 854.22 (4) of the statutes is amended to read:
AB1038,53,62
854.22
(4) Contrary intent. This section does not apply if If the transfer is
3made under a governing instrument and
there is a finding of contrary intent of the
4person who executed the governing instrument
had an intent contrary to any
5provision in this section, then that provision is inapplicable to the transfer. Extrinsic
6evidence may be used to construe
that the intent.
AB1038, s. 164
7Section
164. 854.23 (1) of the statutes is amended to read:
AB1038,53,118
854.23
(1) Definition. In this section, "governing instrument" includes
an
9instrument described in s. 854.01, a filed verified statement under s. 865.201, a
10certificate under s. 867.046 (1m)
, a confirmation under s. 867.046 (2), or a recorded
11application under s. 867.046 (5).
AB1038, s. 165
12Section
165. 856.05 (5) of the statutes is amended to read:
AB1038,53,1513
856.05
(5) Applicability of section. This section applies to wills
, codicils,
14documents incorporated by reference under s. 853.32 (1) or (2) and information
15needed for proof of a
lost missing will under s. 856.17.
AB1038, s. 166
16Section
166. 856.15 (1) of the statutes is amended to read:
AB1038,53,2417
856.15
(1) Generally. The court may grant probate of an uncontested will on
18the execution in open court by one of the subscribing witnesses of a sworn statement
19that the will was executed as required by the statutes and that the testator was of
20sound mind, of full age
, and not acting under any restraint at the time of the
21execution thereof. If an uncontested will contains an attestation clause showing
22compliance with the requirements for execution under s. 853.03 or 853.05
or includes
23an affidavit in substantially the form under s. 853.04 (1) or (2), the court may grant
24probate without any testimony or other evidence.
AB1038, s. 167
25Section
167. 856.16 of the statutes is repealed and recreated to read:
AB1038,54,3
1856.16 Self-proved will. (1) Unless there is proof of fraud or forgery in
2connection with the affidavit, if a will includes an affidavit in substantially the form
3under s. 853.04 (1) or (2), all of the following apply:
AB1038,54,54
(a) The will is conclusively presumed to have been executed in compliance with
5s. 853.03.
AB1038,54,76
(b) Other requirements related to the valid execution of the will are rebuttably
7presumed.
AB1038,54,98
(c) A signature affixed to the affidavit is considered a signature affixed to the
9will, if necessary to prove the due execution of the will.
AB1038,54,11
10(2) Admission of a will under s. 856.13 or 856.15 is not dependent on the
11existence of a valid affidavit under s. 853.04.
AB1038, s. 168
12Section
168. 856.17 of the statutes is amended to read:
AB1038,54,17
13856.17 Lost Missing will, how proved. If any will is lost, destroyed by
14accident
or, destroyed without the testator's consent
, unavailable but revived under
15s. 853.11 (6), or otherwise missing, the court has power to take proof of the execution
16and validity of the will and to establish the same. The petition for the probate of the
17will shall set forth the provisions
thereof of the will.
AB1038, s. 169
18Section
169. 857.03 (2) of the statutes is renumbered 766.31 (3) (b) 3., and
19766.31 (3) (b) 3. (intro.) and a., as renumbered, are amended to read:
AB1038,55,220
766.31
(3) (b) 3. (intro.) The surviving spouse and a distributee who is a
21successor in interest to all or part of the decedent's one-half interest in marital
22property may petition the court to approve an exchange of interests in the marital
23property
authorized under subd. 1. or 2., but court approval of the exchange is not
24required for the agreement under subd. 1. or 2. to be effective. If the court approves
25the exchange, the
personal representative surviving spouse and the distributee shall
1exchange their respective interests in 2 or more items of marital property and
2distribute the items in a manner to conform with the exchange. The exchange shall:
AB1038,55,43
a. Occur before the final distribution of the
estate
assets under the governing
4instrument;
AB1038, s. 170
5Section
170. 857.03 (2m) of the statutes is created to read:
AB1038,55,86
857.03
(2m) The surviving spouse and the personal representative may
7petition the court to approve an exchange of interests in marital property as provided
8in s. 766.31 (3) (b) 3.
AB1038, s. 171
9Section
171. 859.01 of the statutes is amended to read:
AB1038,55,15
10859.01 Time for filing claims. When an application for administration is
11filed, the court, or the probate registrar under informal administration proceedings,
12shall by order set a date as the deadline for filing a claim against the decedent's
13estate. The date shall be not less than 3 nor more than 4 months from the date of the
14order.
If a claim is not filed by the deadline, the consequences provided in s. 859.02
15apply.
AB1038, s. 172
16Section
172. 859.02 (2m) of the statutes is created to read:
AB1038,55,1717
859.02
(2m) (a) A claim based on a tort is subject to s. 859.45.
AB1038,55,1818
(b) A claim of a creditor without notice is subject to s. 859.48.
AB1038, s. 173
19Section
173. 861.01 (3) of the statutes is renumbered 766.31 (7m) and
20amended to read:
AB1038,55,2521
766.31
(7m) Personal injury damages; lost earnings. To the extent that
22marital property includes damages for loss of future income arising from a personal
23injury claim of
the a surviving spouse, the surviving spouse is entitled to receive as
24individual property that portion of the award that represents an income substitute
25after the death of the other spouse.
AB1038, s. 174
1Section
174. 861.01 (3m) of the statutes is created to read:
AB1038,56,42
861.01
(3m) Personal injury damages; lost earnings. Section 766.31 (7m)
3determines the rights of a surviving spouse to that part of a personal injury claim
4that represents future lost earnings of the surviving spouse.
AB1038, s. 175
5Section
175. 861.01 (4) of the statutes is created to read:
AB1038,56,86
861.01
(4) Enforcement of surviving spouse's marital property rights in
7nonprobate assets. Section 766.70 applies to enforcement of a surviving spouse's
8marital property rights in nonprobate assets.
AB1038, s. 176
9Section
176. 861.01 (5) of the statutes is created to read:
AB1038,56,1110
861.01
(5) Division of marital property on aggregate basis. Section 766.31
11(3) (b) determines how marital property may be divided upon the death of a spouse.
AB1038, s. 177
12Section
177. Subchapter II (title) of chapter 861 [precedes 861.018] of the
13statutes is amended to read:
AB1038,56,1414
CHAPTER 861
AB1038,56,1815
SUBCHAPTER II
16ELECTIVE SHARE IN
17DEFERRED MARITAL PROPERTY
18elective share amount
AB1038, s. 178
19Section
178. 861.02 (title) of the statutes is amended to read:
AB1038,56,20
20861.02 (title)
Deferred marital property elective share amount.
AB1038, s. 179
21Section
179. 861.02 (2) (b) (intro.) of the statutes is amended to read:
AB1038,57,222
861.02
(2) (b) (intro.) The augmented deferred marital property estate is the
23total value of the deferred marital property of the spouses, irrespective of where the
24property was acquired
, where the property was located at the time of a relevant
25transfer, or where the property is currently located, including real property located
1in another jurisdiction. It includes all types of property that fall within any of the
2following categories:
AB1038, s. 180
3Section
180. 861.02 (4) of the statutes is amended to read:
AB1038,57,84
861.02
(4) Satisfaction. Satisfaction of the augmented deferred marital
5property elective share
amount is governed by ss. 861.06, 861.07
, and 861.11
,
6irrespective of where the property was acquired, where the property was located at
7the time of a relevant transfer, or where the property is currently located, including
8real property located in another jurisdiction.
AB1038, s. 181
9Section
181. 861.02 (6) of the statutes is amended to read:
AB1038,57,1110
861.02
(6) Waiver. Waiver of the deferred marital property elective share
11amount is governed by s. 861.10.
AB1038, s. 182
12Section
182. 861.02 (7) (b) of the statutes is amended to read:
AB1038,57,1513
861.02
(7) (b) If a decedent who is not domiciled in this state owns real property
14in this state, the
right rights of the surviving spouse
to take an elective share in that
15property
is are governed by s. 861.20.
AB1038, s. 183
16Section
183. 861.02 (8) of the statutes is repealed and recreated to read:
AB1038,57,1917
861.02
(8) Effect if death caused by spouse. Section 854.14 (2) (c) and (3m)
18(d) applies to election of deferred marital property if the decedent's surviving spouse
19unlawfully and intentionally killed the decedent.
AB1038, s. 185
21Section
185. 861.04 (2m) of the statutes is created to read:
AB1038,57,2422
861.04
(2m) When the surviving spouse is treated as the decedent under sub.
23(1), the decedent is not treated as the surviving spouse for the purposes of s. 861.05
24(1) (e) or (2m).
AB1038, s. 186
25Section
186. 861.05 (1) (c) of the statutes is amended to read:
AB1038,58,3
1861.05
(1) (c) Transfers of deferred marital property to persons other than the
2surviving spouse
who did not make the transfer, with the written joinder or written
3consent of
the surviving that spouse.
AB1038, s. 187
4Section
187. 861.05 (1) (e) of the statutes is created to read:
AB1038,58,85
861.05
(1) (e) The deferred marital property component of any deferred
6employment benefit plan, or of assets in an individual retirement account that are
7traceable to the rollover of a deferred employment benefit plan, held by the surviving
8spouse that would have terminated under s. 766.62 (5) had it been marital property.
AB1038, s. 188
9Section
188. 861.05 (2) (title) of the statutes is amended to read:
AB1038,58,1010
861.05
(2) (title)
Valuation of decedent's property and transfers.
AB1038, s. 189
11Section
189. 861.05 (2m) of the statutes is created to read:
AB1038,58,1612
861.05
(2m) Valuation of surviving spouse's property and transfers. The
13surviving spouse's property included in the augmented deferred marital property
14estate under s. 861.04 (1) is valued in the same manner as the decedent spouse's
15property included in the augmented deferred marital property estate is valued under
16sub. (2), subject to the following:
AB1038,58,1917
(a) The surviving spouse shall be treated as having died after the decedent on
18the date of the decedent's death notwithstanding the 120-hour survival requirement
19under s. 854.03 (1).
AB1038,58,2320
(b) Life insurance on the surviving spouse's life shall have the value of the
21deferred marital property component of the interpolated terminal reserve and the
22unused portion of the term premium of the policy as of the date of the decedent's
23death.
AB1038, s. 190
24Section
190. 861.06 (title) of the statutes is amended to read:
AB1038,59,2
1861.06 (title)
Satisfaction of deferred marital property elective share
2amount.
AB1038, s. 191
3Section
191. 861.06 (2) (title) of the statutes is amended to read:
AB1038,59,54
861.06
(2) (title)
Initial satisfaction of deferred marital property elective
5share amount.
AB1038, s. 192
6Section
192. 861.06 (2) (b) (intro.) of the statutes is amended to read:
AB1038,59,97
861.06
(2) (b) (intro.) All marital, individual, deferred marital
, or deferred
8individual property, transferred to the surviving spouse
, including any beneficial
9interest in property transferred in trust:
AB1038, s. 193
10Section
193. 861.06 (2) (b) 4. a. of the statutes is amended to read:
AB1038,59,1211
861.06
(2) (b) 4. a. The first $5,000 of the value of
the gifts from the decedent
12to the surviving spouse each year.
Each gift shall be valued as of the date of the gift.
AB1038, s. 194
13Section
194. 861.06 (6) of the statutes is created to read:
AB1038,59,2014
861.06
(6) Valuation. The value of property used to satisfy the deferred marital
15property elective share includes the value of any property transferred outright to the
16surviving spouse, the commuted value of any present or future interest in property
17transferred to the surviving spouse, and the commuted value of property payable to
18the surviving spouse under any trust, life insurance settlement option, annuity
19contract, public or private pension, disability compensation, death benefit or
20retirement plan, or any similar arrangement.
AB1038, s. 195
21Section
195. 861.07 (2) (intro.) of the statutes is amended to read:
AB1038,59,2422
861.07
(2) Persons liable. (intro.) The following persons are liable to make
23a prorated contribution toward satisfaction of the surviving spouse's deferred
24marital property elective share
amount:
AB1038, s. 196
25Section
196. 861.10 (1) of the statutes is amended to read:
AB1038,60,6
1861.10
(1) Right to elect may be waived. The right to elect a deferred marital
2property elective share
amount may be waived by the surviving spouse in whole or
3in part. The waiver may take place before or after marriage. The waiver
shall must 4be contained in a marital property agreement that is enforceable under s. 766.58 or
5in a signed document filed with a court described in s. 861.08 (1) (a) after the
6decedent's death.
AB1038, s. 197
7Section
197. 861.10 (2) of the statutes is amended to read:
AB1038,60,128
861.10
(2) Waiver of "all rights
".." Unless the waiver provides otherwise, a
9waiver of "all rights
",," or equivalent language, in the property or estate of a present
10or prospective spouse, or in a complete property settlement entered into because of
11separation or divorce, is a waiver of all rights in the deferred marital property
12elective share
amount.
AB1038, s. 198
13Section
198. 861.11 (2) (a) (intro.) of the statutes is amended to read:
AB1038,60,1814
861.11
(2) (a) (intro.) Upon a beneficiary's request for payment, a payer or other
153rd party who has received satisfactory proof of the decedent's death and who has not
16received written notice that the surviving spouse or his or her representative intends
17to file a petition for the deferred marital property elective share
amount or that a
18petition for the election has been filed is not liable for any of the following:
AB1038, s. 199
19Section
199. 861.11 (2) (b) of the statutes is amended to read:
AB1038,60,2320
861.11
(2) (b) A payer or other 3rd party is liable for payments made or other
21actions taken after receipt of written notice of the intent to file a petition for the
22elective share
amount or written notice that a petition for the elective share
amount 23has been filed.
AB1038, s. 200
24Section
200. 861.11 (5) (b) of the statutes is amended to read:
AB1038,61,9
1861.11
(5) (b) Notwithstanding sub. (2), in addition to the protections afforded
2a financial institution under ss. 701.19 (11) and 710.05 and chs. 112 and 705 a
3financial institution is not liable for having transferred an account included in the
4augmented deferred marital property estate under s. 861.03 to a beneficiary
5designated in a governing instrument, or for having taken any other action in
6reliance on the beneficiary's apparent entitlement under the terms of a governing
7instrument, regardless of whether the financial institution received written notice
8of an intent to file, or the filing of, a petition for the deferred marital property elective
9share
amount.