AB1038: Bill Text

AB1038,53,11 854.23 (1) Definition. In this section, "governing instrument" includes an instrument described in s. 854.01, a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m), a confirmation under s. 867.046 (2), or a recorded application under s. 867.046 (5).

AB1038, s. 165 Section 165. 856.05 (5) of the statutes is amended to read:

AB1038,53,15 856.05 (5) Applicability of section. This section applies to wills, codicils, documents incorporated by reference under s. 853.32 (1) or (2) and information needed for proof of a lost missing will under s. 856.17.

AB1038, s. 166 Section 166. 856.15 (1) of the statutes is amended to read:

AB1038,53,24 856.15 (1) Generally. The court may grant probate of an uncontested will on the execution in open court by one of the subscribing witnesses of a sworn statement that the will was executed as required by the statutes and that the testator was of sound mind, of full age, and not acting under any restraint at the time of the execution thereof. If an uncontested will contains an attestation clause showing compliance with the requirements for execution under s. 853.03 or 853.05 or includes an affidavit in substantially the form under s. 853.04 (1) or (2), the court may grant probate without any testimony or other evidence.

AB1038, s. 167 Section 167. 856.16 of the statutes is repealed and recreated to read:

AB1038,54,3 856.16 Self-proved will. (1) Unless there is proof of fraud or forgery in connection with the affidavit, if a will includes an affidavit in substantially the form under s. 853.04 (1) or (2), all of the following apply:

AB1038,54,5 (a) The will is conclusively presumed to have been executed in compliance with s. 853.03.

AB1038,54,7 (b) Other requirements related to the valid execution of the will are rebuttably presumed.

AB1038,54,9 (c) A signature affixed to the affidavit is considered a signature affixed to the will, if necessary to prove the due execution of the will.

AB1038,54,11 (2) Admission of a will under s. 856.13 or 856.15 is not dependent on the existence of a valid affidavit under s. 853.04.

AB1038, s. 168 Section 168. 856.17 of the statutes is amended to read:

AB1038,54,17 856.17 Lost Missing will, how proved. If any will is lost, destroyed by accident or, destroyed without the testator's consent, unavailable but revived under s. 853.11 (6), or otherwise missing, the court has power to take proof of the execution and validity of the will and to establish the same. The petition for the probate of the will shall set forth the provisions thereof of the will.

AB1038, s. 169 Section 169. 857.03 (2) of the statutes is renumbered 766.31 (3) (b) 3., and 766.31 (3) (b) 3. (intro.) and a., as renumbered, are amended to read:

AB1038,55,2 766.31 (3) (b) 3. (intro.) The surviving spouse and a distributee who is a successor in interest to all or part of the decedent's one-half interest in marital property may petition the court to approve an exchange of interests in the marital property authorized under subd. 1. or 2., but court approval of the exchange is not required for the agreement under subd. 1. or 2. to be effective. If the court approves the exchange, the personal representative surviving spouse and the distributee shall exchange their respective interests in 2 or more items of marital property and distribute the items in a manner to conform with the exchange. The exchange shall:

AB1038,55,4 a. Occur before the final distribution of the estate assets under the governing instrument;

AB1038, s. 170 Section 170. 857.03 (2m) of the statutes is created to read:

AB1038,55,8 857.03 (2m) The surviving spouse and the personal representative may petition the court to approve an exchange of interests in marital property as provided in s. 766.31 (3) (b) 3.

AB1038, s. 171 Section 171. 859.01 of the statutes is amended to read:

AB1038,55,15 859.01 Time for filing claims. When an application for administration is filed, the court, or the probate registrar under informal administration proceedings, shall by order set a date as the deadline for filing a claim against the decedent's estate. The date shall be not less than 3 nor more than 4 months from the date of the order. If a claim is not filed by the deadline, the consequences provided in s. 859.02 apply.

AB1038, s. 172 Section 172. 859.02 (2m) of the statutes is created to read:

AB1038,55,17 859.02 (2m) (a) A claim based on a tort is subject to s. 859.45.

AB1038,55,18 (b) A claim of a creditor without notice is subject to s. 859.48.

AB1038, s. 173 Section 173. 861.01 (3) of the statutes is renumbered 766.31 (7m) and amended to read:

AB1038,55,25 766.31 (7m) Personal injury damages; lost earnings. To the extent that marital property includes damages for loss of future income arising from a personal injury claim of the a surviving spouse, the surviving spouse is entitled to receive as individual property that portion of the award that represents an income substitute after the death of the other spouse.

AB1038, s. 174 Section 174. 861.01 (3m) of the statutes is created to read:

AB1038,56,4 861.01 (3m) Personal injury damages; lost earnings. Section 766.31 (7m) determines the rights of a surviving spouse to that part of a personal injury claim that represents future lost earnings of the surviving spouse.

AB1038, s. 175 Section 175. 861.01 (4) of the statutes is created to read:

AB1038,56,8 861.01 (4) Enforcement of surviving spouse's marital property rights in nonprobate assets. Section 766.70 applies to enforcement of a surviving spouse's marital property rights in nonprobate assets.

AB1038, s. 176 Section 176. 861.01 (5) of the statutes is created to read:

AB1038,56,11 861.01 (5) Division of marital property on aggregate basis. Section 766.31 (3) (b) determines how marital property may be divided upon the death of a spouse.

AB1038, s. 177 Section 177. Subchapter II (title) of chapter 861 [precedes 861.018] of the statutes is amended to read:

AB1038,56,14 CHAPTER 861

AB1038,56,18 SUBCHAPTER II ELECTIVE SHARE IN DEFERRED MARITAL PROPERTY elective share amount

AB1038, s. 178 Section 178. 861.02 (title) of the statutes is amended to read:

AB1038,56,20 861.02 (title) Deferred marital property elective share amount.

AB1038, s. 179 Section 179. 861.02 (2) (b) (intro.) of the statutes is amended to read:

AB1038,57,2 861.02 (2) (b) (intro.) The augmented deferred marital property estate is the total value of the deferred marital property of the spouses, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction. It includes all types of property that fall within any of the following categories:

AB1038, s. 180 Section 180. 861.02 (4) of the statutes is amended to read:

AB1038,57,8 861.02 (4) Satisfaction. Satisfaction of the augmented deferred marital property elective share amount is governed by ss. 861.06, 861.07, and 861.11, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction.

AB1038, s. 181 Section 181. 861.02 (6) of the statutes is amended to read:

AB1038,57,11 861.02 (6) Waiver. Waiver of the deferred marital property elective share amount is governed by s. 861.10.

AB1038, s. 182 Section 182. 861.02 (7) (b) of the statutes is amended to read:

AB1038,57,15 861.02 (7) (b) If a decedent who is not domiciled in this state owns real property in this state, the right rights of the surviving spouse to take an elective share in that property is are governed by s. 861.20.

AB1038, s. 183 Section 183. 861.02 (8) of the statutes is repealed and recreated to read:

AB1038,57,19 861.02 (8) Effect if death caused by spouse. Section 854.14 (2) (c) and (3m) (d) applies to election of deferred marital property if the decedent's surviving spouse unlawfully and intentionally killed the decedent.

AB1038, s. 184 Section 184. 861.04 (2) of the statutes is repealed.

AB1038, s. 185 Section 185. 861.04 (2m) of the statutes is created to read:

AB1038,57,24 861.04 (2m) When the surviving spouse is treated as the decedent under sub. (1), the decedent is not treated as the surviving spouse for the purposes of s. 861.05 (1) (e) or (2m).

AB1038, s. 186 Section 186. 861.05 (1) (c) of the statutes is amended to read:

AB1038,58,3 861.05 (1) (c) Transfers of deferred marital property to persons other than the surviving spouse who did not make the transfer, with the written joinder or written consent of the surviving that spouse.

AB1038, s. 187 Section 187. 861.05 (1) (e) of the statutes is created to read:

AB1038,58,8 861.05 (1) (e) The deferred marital property component of any deferred employment benefit plan, or of assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, held by the surviving spouse that would have terminated under s. 766.62 (5) had it been marital property.

AB1038, s. 188 Section 188. 861.05 (2) (title) of the statutes is amended to read:

AB1038,58,10 861.05 (2) (title) Valuation of decedent's property and transfers.

AB1038, s. 189 Section 189. 861.05 (2m) of the statutes is created to read:

AB1038,58,16 861.05 (2m) Valuation of surviving spouse's property and transfers. The surviving spouse's property included in the augmented deferred marital property estate under s. 861.04 (1) is valued in the same manner as the decedent spouse's property included in the augmented deferred marital property estate is valued under sub. (2), subject to the following:

AB1038,58,19 (a) The surviving spouse shall be treated as having died after the decedent on the date of the decedent's death notwithstanding the 120-hour survival requirement under s. 854.03 (1).

AB1038,58,23 (b) Life insurance on the surviving spouse's life shall have the value of the deferred marital property component of the interpolated terminal reserve and the unused portion of the term premium of the policy as of the date of the decedent's death.

AB1038, s. 190 Section 190. 861.06 (title) of the statutes is amended to read:

AB1038,59,2 861.06 (title) Satisfaction of deferred marital property elective share amount.

AB1038, s. 191 Section 191. 861.06 (2) (title) of the statutes is amended to read:

AB1038,59,5 861.06 (2) (title) Initial satisfaction of deferred marital property elective share amount.

AB1038, s. 192 Section 192. 861.06 (2) (b) (intro.) of the statutes is amended to read:

AB1038,59,9 861.06 (2) (b) (intro.) All marital, individual, deferred marital, or deferred individual property, transferred to the surviving spouse, including any beneficial interest in property transferred in trust:

AB1038, s. 193 Section 193. 861.06 (2) (b) 4. a. of the statutes is amended to read:

AB1038,59,12 861.06 (2) (b) 4. a. The first $5,000 of the value of the gifts from the decedent to the surviving spouse each year. Each gift shall be valued as of the date of the gift.

AB1038, s. 194 Section 194. 861.06 (6) of the statutes is created to read:

AB1038,59,20 861.06 (6) Valuation. The value of property used to satisfy the deferred marital property elective share includes the value of any property transferred outright to the surviving spouse, the commuted value of any present or future interest in property transferred to the surviving spouse, and the commuted value of property payable to the surviving spouse under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement.

AB1038, s. 195 Section 195. 861.07 (2) (intro.) of the statutes is amended to read:

AB1038,59,24 861.07 (2) Persons liable. (intro.) The following persons are liable to make a prorated contribution toward satisfaction of the surviving spouse's deferred marital property elective share amount:

AB1038, s. 196 Section 196. 861.10 (1) of the statutes is amended to read:

AB1038,60,6 861.10 (1) Right to elect may be waived. The right to elect a deferred marital property elective share amount may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver shall must be contained in a marital property agreement that is enforceable under s. 766.58 or in a signed document filed with a court described in s. 861.08 (1) (a) after the decedent's death.

AB1038, s. 197 Section 197. 861.10 (2) of the statutes is amended to read:

AB1038,60,12 861.10 (2) Waiver of "all rights ".." Unless the waiver provides otherwise, a waiver of "all rights",," or equivalent language, in the property or estate of a present or prospective spouse, or in a complete property settlement entered into because of separation or divorce, is a waiver of all rights in the deferred marital property elective share amount.

AB1038, s. 198 Section 198. 861.11 (2) (a) (intro.) of the statutes is amended to read:

AB1038,60,18 861.11 (2) (a) (intro.) Upon a beneficiary's request for payment, a payer or other 3rd party who has received satisfactory proof of the decedent's death and who has not received written notice that the surviving spouse or his or her representative intends to file a petition for the deferred marital property elective share amount or that a petition for the election has been filed is not liable for any of the following:

AB1038, s. 199 Section 199. 861.11 (2) (b) of the statutes is amended to read:

AB1038,60,23 861.11 (2) (b) A payer or other 3rd party is liable for payments made or other actions taken after receipt of written notice of the intent to file a petition for the elective share amount or written notice that a petition for the elective share amount has been filed.

AB1038, s. 200 Section 200. 861.11 (5) (b) of the statutes is amended to read:

AB1038,61,9 861.11 (5) (b) Notwithstanding sub. (2), in addition to the protections afforded a financial institution under ss. 701.19 (11) and 710.05 and chs. 112 and 705 a financial institution is not liable for having transferred an account included in the augmented deferred marital property estate under s. 861.03 to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of a governing instrument, regardless of whether the financial institution received written notice of an intent to file, or the filing of, a petition for the deferred marital property elective share amount.

AB1038, s. 201 Section 201. 861.17 (3) of the statutes is amended to read:

AB1038,61,16 861.17 (3) If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the share amount the spouse would receive under ch. 852 and this chapter. Other rules of this chapter apply so far as possible. Recovery A spouse who recovers under this subsection forfeits any power of appointment which that the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power.

AB1038, s. 202 Section 202. 861.20 (2) of the statutes is amended to read:

AB1038,61,22 861.20 (2) If a married person who does not have a domicile in this state dies and has an interest in real property in this state that is subject to administration but not disposed of by will, the surviving spouse has the same right to the property under intestate succession as if the property were located in the decedent's domicile at decedent's death.

AB1038, s. 203 Section 203. 861.21 (1) (a) of the statutes is amended to read:

AB1038,61,24 861.21 (1) (a) "Governing instrument" has the meaning given in s. 854.01 (2).

AB1038, s. 204 Section 204. 861.21 (2) of the statutes is amended to read:

AB1038,62,8 861.21 (2) If marital Decedent's property interest in home. Subject to subs. (4) and (5), if a married decedent has a marital property interest in a home, the decedent's entire interest in the home shall be assigned to the surviving spouse if the surviving spouse petitions the court requesting such a distribution and if a governing instrument does not provide a specific transfer of the decedent's interest in the home to someone other than the surviving spouse. The surviving spouse shall file the petition within 6 months after the decedent's death, unless the court extends the time for filing.