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.
AB1038, s. 201
10Section
201. 861.17 (3) of the statutes is amended to read:
AB1038,61,1611
861.17
(3) If the spouse is successful in an action to reach fraudulent property
12arrangements, recovery is limited to the
share amount the spouse would receive
13under ch. 852 and this chapter. Other rules of this chapter apply so far as possible.
14Recovery A spouse who recovers under this subsection forfeits any power of
15appointment
which that the surviving spouse possesses over the remaining portion
16of the fraudulently arranged property, except a special power.
AB1038, s. 202
17Section
202. 861.20 (2) of the statutes is amended to read:
AB1038,61,2218
861.20
(2) If a married person who does not have a domicile in this state dies
19and has an interest in real property in this state that is
subject to administration but 20not disposed of by will, the surviving spouse has the same right to the property under
21intestate succession as if the property were located in the decedent's domicile at
22decedent's death.
AB1038, s. 203
23Section
203. 861.21 (1) (a) of the statutes is amended to read:
AB1038,61,2424
861.21
(1) (a) "Governing instrument" has the meaning given in s. 854.01
(2).
AB1038, s. 204
25Section
204. 861.21 (2) of the statutes is amended to read:
AB1038,62,8
1861.21
(2) If marital Decedent's property interest in home. Subject to subs.
2(4) and (5), if a married decedent has a
marital property interest in a home, the
3decedent's entire interest in the home shall be assigned to the surviving spouse if the
4surviving spouse petitions the court requesting such a distribution and if a governing
5instrument does not provide a specific transfer of the decedent's interest in the home
6to someone other than the surviving spouse. The surviving spouse shall file the
7petition within 6 months after the decedent's death, unless the court extends the
8time for filing.
AB1038, s. 206
10Section
206. 861.21 (4) of the statutes is amended to read:
AB1038,62,1811
861.21
(4) Payment by surviving spouse. The court shall assign the interest in
12the home
under sub. (2) to the surviving spouse upon payment of the value of the
13decedent's interest
in the home that does not pass to the surviving spouse under
14intestacy or under
the a governing instrument. Payment shall be made to the
15fiduciary holding title to the interest. The surviving spouse may use assets due him
16or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court
17extends the time, the surviving spouse shall have one year from the decedent's death
18to pay the value of the assigned interest.
AB1038, s. 207
19Section
207. 861.21 (5) of the statutes is amended to read:
AB1038,63,220
861.21
(5) Severance of home from surrounding land. On petition of the
21surviving spouse or of any interested person that part of the land is not necessary for
22dwelling purposes and that it would be inappropriate to assign all of the surrounding
23land as the home
under sub. (2), the court may set off for the home as much of the
24land as is necessary for a dwelling. In determining how much land should be set off,
1the court shall take into account the use and marketability of the parcels set off as
2the home and the remaining land.
AB1038, s. 209
4Section
209. 861.31 (1m) of the statutes is amended to read:
AB1038,63,115
861.31
(1m) The court may, without notice or on such notice as the court
6directs, order payment by the personal representative or special administrator of an
7allowance as
it the court determines necessary or appropriate for the support of the
8surviving spouse and any
dependent minor children
of the decedent during the
9administration of the estate.
In making or denying the order the The court shall
10consider the size of the probate estate, other resources available for support,
the 11existing standard of living, and any other factors it considers relevant.
AB1038, s. 210
12Section
210. 861.31 (2) of the statutes is amended to read:
AB1038,63,1813
861.31
(2) The
court may order that an allowance
may be made to the spouse
14for support of the spouse and any
dependent minor children
of the decedent, or
that 15separate allowances
may be made to the spouse and to the
dependent minor children
16of the decedent or their guardian, if any, if the court finds separate allowances
17advisable. If there is no surviving spouse
, the
court may order that an allowance
may 18be made to the
dependent minor children
of the decedent or to their guardian, if any.
AB1038, s. 211
19Section
211. 861.31 (4) (intro.) of the statutes is amended to read:
AB1038,64,220
861.31
(4) (intro.) The court may
direct order that the allowance be charged
21against income or principal, either as an advance or otherwise, but
in no event may 22the court may not order that an allowance for support of
dependent minor children
23of the decedent be charged against the income or principal interest of the surviving
24spouse. The court may
direct order that the allowance for support of the surviving
1spouse, not including any allowance for support of
dependent minor children
of the
2decedent, be applied in satisfaction of any of the following:
AB1038, s. 212
3Section
212. 861.31 (4) (a) of the statutes is amended to read:
AB1038,64,54
861.31
(4) (a) Any entitlement of the surviving spouse under s.
853.11 (2) 5853.12.
AB1038, s. 213
6Section
213. 861.33 (title) of the statutes is amended to read:
AB1038,64,7
7861.33 (title)
Selection of personalty by surviving spouse or children.
AB1038, s. 214
8Section
214. 861.33 (1) (a) (intro.) of the statutes is amended to read:
AB1038,64,139
861.33
(1) (a) (intro.) Subject to this section, in addition to all allowances and
10distributions, the surviving spouse
, or if there is no surviving spouse the decedent's
11children, may file with the court a written selection of the following personal
12property, which shall
thereupon then be transferred to the spouse
or children by the
13personal representative:
AB1038, s. 215
14Section
215. 861.33 (1) (b) of the statutes is amended to read:
AB1038,64,2015
861.33
(1) (b) The selection in par. (a) may not include items specifically
16bequeathed except that the surviving spouse
or children may in every case select the
17normal household furniture, furnishings
, and appliances necessary to maintain the
18home. For this purpose antiques, family heirlooms
, and collections
which that are
19specifically bequeathed are not classifiable as normal household furniture or
20furnishings.
AB1038, s. 216
21Section
216. 861.33 (1) (c) of the statutes is repealed.