AB1038: Bill Text

AB1038, s. 67 Section 67. 852.05 (title) of the statutes is amended to read:

AB1038,26,23 852.05 (title) Status of nonmarital child born to unmarried parents for purposes of intestate succession.

AB1038, s. 68 Section 68. 852.05 (1) (intro.) of the statutes is amended to read:

AB1038,27,5 852.05 (1) (intro.) A nonmarital child born to unmarried parents, or the child's issue is entitled to take, is treated in the same manner as a marital child by , or the issue of a child, born to married parents with respect to intestate succession from and through his or her the child's mother, and from and through his or her the child's father if any of the following applies:

AB1038, s. 69 Section 69. 852.05 (2) of the statutes is amended to read:

AB1038,27,12 852.05 (2) Property of a nonmarital child born to unmarried parents passes in accordance with s. 852.01 except that the father or the father's kindred can inherit only if the father has been adjudicated to be the father in a paternity proceeding under ch. 767 or by final order or judgment of a court of competent jurisdiction in another state or has been determined to be the father under s. 767.62 (1) or a substantially similar law of another state.

AB1038, s. 70 Section 70. 852.05 (3) of the statutes is amended to read:

AB1038,27,15 852.05 (3) (a) This section does not apply to a child who becomes a marital child by the subsequent marriage of the child's parents under s. 767.60.

AB1038,27,17 (b) The status of a nonmarital child born to unmarried parents who is legally adopted is governed by s. 854.20.

AB1038, s. 71 Section 71. 852.12 of the statutes is amended to read:

AB1038,27,23 852.12 Debts to decedent. If an heir owes a debt to the decedent, s. 854.12 governs the treatment of that debt shall be charged against the intestate share of the debtor, regardless of whether the debt has been discharged in bankruptcy. If the debtor fails to survive the decedent, the debt shall not be taken into account in computing the intestate shares of the debtor's issue.

AB1038, s. 72 Section 72. 853.03 (2) of the statutes is renumbered 853.03 (2) (am) and amended to read:

AB1038,28,3 853.03 (2) (am) It must be signed by 2 or more witnesses, each of whom at least 2 witnesses who signed within a reasonable time after witnessing any of the following:

AB1038,28,5 1. The signing of the will as provided under sub. (1), in the conscious presence of the witness.

AB1038,28,8 2. The testator's implicit or explicit acknowledgement of the testator's signature on the will, within in the conscious presence of each of the witnesses witness.

AB1038,28,10 3. The testator's implicit or explicit acknowledgement of the will, within in the conscious presence of each of the witnesses witness.

AB1038, s. 73 Section 73. 853.03 (2) (bm) of the statutes is created to read:

AB1038,28,13 853.03 (2) (bm) The 2 witnesses required under par. (am) may observe the signing or acknowledgement under par. (am) 1. to 3. at different times.

AB1038, s. 74 Section 74. 853.04 (3) of the statutes is repealed and recreated to read:

AB1038,28,16 853.04 (3) Effect of affidavit. The effect of an affidavit in substantially the form under sub. (1) or (2) is as provided in s. 856.16.

AB1038, s. 75 Section 75. 853.11 (2) of the statutes is renumbered 853.12, and 853.12 (1), (2) (intro.), (b) and (c), (3) (intro.) and (4) (intro.) and (b), as renumbered, are amended to read:

AB1038,28,22 853.12 (1) Entitlement of surviving spouse. Subject to par. (c) sub. (3), if the testator married the surviving spouse after the testator executed his or her will, the surviving spouse is entitled to a share of the probate estate.

AB1038,29,2 (2) Value of share. (intro.) The value of the share under par. (a) sub. (1) is the value of the share that the surviving spouse would have received had the testator died with an intestate estate equal to the value of the testator's net estate of the decedent less, but the value of the net estate shall first be reduced by the value of all of the following:

AB1038,29,4 (b) All devises to or for the benefit of the issue of a child described in subd. 1. par. (a).

AB1038,29,6 (c) All devises that pass under s. 854.06, 854.07, 854.21, or 854.22 to or for the benefit of children described in subd. 1. par. (a) or issue of those children.

AB1038,29,8 (3) Exceptions. (intro.) Paragraph (a) Subsection (1) does not apply if any of the following applies:

AB1038,29,10 (4) Priority and abatement. (intro.) In satisfying the share provided by this subsection section:

AB1038,29,12 (b) Devises other than those described in par. (b) 1. to 3. sub. (2) (a) to (c) abate as provided under s. 854.18.

AB1038, s. 76 Section 76. 853.11 (2m) of the statutes is created to read:

AB1038,29,16 853.11 (2m) Premarital will. Entitlements of a surviving spouse under a decedent's will that was executed before marriage to the surviving spouse are governed by s. 853.12.

AB1038, s. 77 Section 77. 853.11 (3) of the statutes is amended to read:

AB1038,29,19 853.11 (3) Former Transfer to former spouse. The effect of a A transfer under a will to a former spouse is governed by s. 854.15.

AB1038, s. 78 Section 78. 853.11 (6) (c) of the statutes is amended to read:

AB1038,30,2 853.11 (6) (c) If a subsequent will that wholly or partly revoked a previous will is itself revoked by another, later will, the previous will or its revoked part remains revoked, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent that it appears from the terms of the later will, or from the testator's contemporary or subsequent declarations, that the testator intended the previous will or its revoked part to take effect.

AB1038, s. 79 Section 79. 853.11 (6) (d) of the statutes is amended to read:

AB1038,30,6 853.11 (6) (d) In the absence of an original valid will, establishment of the execution and validity of the revived will or part is governed by may be established as provided in s. 856.17.

AB1038, s. 80 Section 80. 853.18 (1) of the statutes is renumbered 853.18 (1) (intro.) and amended to read:

AB1038,30,21 853.18 (1) (intro.) Except as otherwise provided in s. 853.15 or 853.17 (1) or ch. 766, no written designation in accordance with the terms of any insurance, annuity or endowment contract, or in any agreement issued or entered into by an insurance company in connection therewith, supplemental thereto or in settlement thereof, and no written designation made under a contract, plan, system or trust providing for pension, retirement, deferred compensation, stock bonus, profit-sharing or death benefits, or an employment or commission contract, of any person to be a beneficiary, payee or owner of any right, title or interest thereunder upon the death of another, or any assignment of rights under any of the foregoing, none of the following is subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift, or intestacy, even though that the designation or assignment is revocable or the rights of that the beneficiary, payee, owner, or assignee are otherwise subject to defeasance.:

AB1038, s. 81 Section 81. 853.18 (1) (a), (b) and (c) of the statutes are created to read:

AB1038,30,24 853.18 (1) (a) A written designation in accordance with the terms of any insurance, annuity, or endowment contract.

AB1038,31,2 (b) Any agreement issued or entered into by an insurance company supplemental to or in settlement of any insurance, annuity, or endowment contract.

AB1038,31,7 (c) Any written designation made under a contract, plan, system, or trust providing for pension, retirement, deferred compensation, stock bonus, profit-sharing, or death benefits, or an employment or commission contract, of any person to be a beneficiary, payee, or owner of any right, title, or interest thereunder upon the death of another, or any assignment of rights under any of the foregoing.

AB1038, s. 82 Section 82. 853.25 (2) of the statutes is renumbered 853.25 (2) (a) (intro.) and amended to read:

AB1038,31,16 853.25 (2) (a) (intro.) Except as provided in sub. (5), if clear and convincing evidence proves that the testator failed to provide in the testator's will for a child living at the time of making of the will, or for the issue of any then deceased child, by mistake or accident, including the mistaken belief that the child or issue of a deceased child was dead at the time the will was executed, the child or issue is entitled to receive a share in the estate of the testator, as provided under sub. (1), as if the child or issue was born or adopted after the execution of the will., as follows:

AB1038,31,18 (b) Failure to mention a child or issue in the will is not in itself evidence of mistake or accident.

AB1038, s. 83 Section 83. 853.25 (2) (a) 1. and 2. of the statutes are created to read:

AB1038,31,22 853.25 (2) (a) 1. If no children were included in the will but some or all of those children were omitted by mistake, then sub. (1) (b) provides for the share of any child or issue omitted by mistake.

AB1038,31,25 2. If some children were included in the will but other children were omitted by mistake, then sub. (1) (c) provides for the share of any child or issue omitted by mistake.

AB1038, s. 84 Section 84. 853.32 (1) of the statutes is renumbered 853.32 (1) (am).

AB1038, s. 85 Section 85. 853.32 (1) (bm) of the statutes is created to read:

AB1038,32,5 853.32 (1) (bm) A writing or document is incorporated into a will under par. (am) even if the writing or document is not executed in compliance with s. 853.03 or 853.05.

AB1038, s. 86 Section 86. 853.32 (2) (a) of the statutes is amended to read:

AB1038,32,12 853.32 (2) (a) A reference in a will executed on or after May 3, 1996, to another document that lists tangible personal property not otherwise specifically disposed of in the will disposes of that property if the other document describes the property and the distributees with reasonable certainty and is signed and dated by the decedent. The court may enforce a document that is not dated but that fulfills all of the other requirements under this paragraph.

AB1038, s. 87 Section 87. 853.32 (2) (am) of the statutes is created to read:

AB1038,32,18 853.32 (2) (am) Another document under par. (a) is valid if it was signed in compliance with s. 853.03 (1) or with the law of the place where the document was signed, or where the testator resided, was domiciled, or was a national at the time the document was signed or at the time of death, even if it was not otherwise executed in compliance with s. 853.03 (2) or 853.05.

AB1038, s. 88 Section 88. 853.32 (2) (b) of the statutes is renumbered 853.32 (2) (b) (intro.) and amended to read:

AB1038,32,22 853.32 (2) (b) (intro.) Another document under par. (a) is valid even if it any of the following applies:

AB1038,32,23 1. The document does not exist when the will is executed, even if it.

AB1038,32,24 2. The document is changed after the will is executed and even if it.

AB1038,33,2 3. The document has no significance except for its effect on the disposition of property by the will.

AB1038, s. 89 Section 89. 854.01 of the statutes is renumbered 854.01 (intro.) and amended to read:

AB1038,33,5 854.01 Definition Definitions. (intro.) In this chapter, "governing :

AB1038,33,11 (2) "Governing instrument" means a will; a deed; a trust instrument; an insurance or annuity policy; a contract; a pension, profit-sharing, retirement, or similar benefit plan; a marital property agreement under s. 766.58 (3) (f); a beneficiary designation under s. 40.02 (8) (a); an instrument under ch. 705; an instrument that creates or exercises a power of appointment; or any other dispositive, appointive, or nominative instrument that transfers property at death.

AB1038, s. 90 Section 90. 854.01 (1) of the statutes is created to read:

AB1038,33,15 854.01 (1) "Extrinsic evidence" means evidence that would be inadmissible under the common law parole evidence rule or a similar doctrine because the evidence is not contained in the governing instrument to which it relates.

AB1038, s. 91 Section 91. 854.03 (2) (b) of the statutes is amended to read:

AB1038,33,21 854.03 (2) (b) Except as provided in sub. (5), if property is transferred under a governing instrument that establishes 2 or more co-owners with right of survivorship, and if it is not established that at least one of the co-owners survived did not survive the others by at least 120 hours, the property is transferred to the co-owners in proportion to their ownership interests.

AB1038, s. 92 Section 92. 854.03 (5) of the statutes is renumbered 854.03 (5) (am), and 854.03 (5) (am) 4., as renumbered, is amended to read:

AB1038,34,2 854.03 (5) (am) 4. The imposition of a 120-hour survival requirement would cause a nonvested property interest or a power of appointment to fail to be valid, or to be invalidated, under s. 700.16 or under the rule against perpetuities of the applicable jurisdiction.

AB1038, s. 93 Section 93. 854.03 (5) (am) 7. of the statutes is created to read:

AB1038,34,5 854.03 (5) (am) 7. The statute or governing instrument specifies that this statute, or one similar to it, does not apply.

AB1038, s. 94 Section 94. 854.03 (5) (am) 8. of the statutes is created to read:

AB1038,34,9 854.03 (5) (am) 8. The imposition of a 120-hour survival requirement would be administratively cumbersome and would not change the identity of the ultimate beneficiaries of the property or the property that each beneficiary would receive.

AB1038, s. 95 Section 95. 854.03 (5) (bm) of the statutes is created to read:

AB1038,34,14 854.03 (5) (bm) If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe the intent.

AB1038, s. 96 Section 96. 854.03 (7) of the statutes is repealed.

AB1038, s. 97 Section 97. 854.04 (1) (a) of the statutes is amended to read:

AB1038,34,23 854.04 (1) (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person "by representation",," "by right of representation," or "per stirpes",," the property is divided into equal shares for the designated person's surviving children of the designated person and for the designated person's deceased children who left surviving issue. Each surviving child and each deceased child who left surviving issue are allocated one share.

AB1038, s. 98 Section 98. 854.04 (3) (a) of the statutes is amended to read:

AB1038,35,8 854.04 (3) (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person "per capita at each generation", ," the property is divided into equal shares at the generation nearest to the designated person that contains one or more surviving issue. Each survivor in that generation is and each deceased person in that generation who left surviving issue are allocated one share, and the. The shares of the deceased persons in that same generation who left surviving issue are combined for distribution allocation under par. (b).

AB1038, s. 99 Section 99. 854.04 (4) of the statutes is amended to read:

AB1038,35,13 854.04 (4) Per capita. Except as provided in sub. (6), if a statute or governing instrument calls for property to be distributed to a group or class "per capita", the property is divided into as many shares as there are surviving members of the group or class, and each member receives is allocated one share.

AB1038, s. 100 Section 100. 854.04 (5) (intro.) of the statutes is amended to read:

AB1038,35,16 854.04 (5) Certain individuals disregarded. (intro.) For the purposes of this section subs. (1) to (3), all of the following apply:

AB1038, s. 101 Section 101. 854.04 (5) (b) of the statutes is amended to read:

AB1038,35,19 854.04 (5) (b) An individual who has a surviving ancestor who is an issue of the designated person is not entitled to allocated a share.

AB1038, s. 102 Section 102. 854.04 (6) of the statutes is amended to read:

AB1038,35,25 854.04 (6) Contrary intent. This section does not apply if If the transfer is made under a governing instrument and there is a finding of contrary intent of the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 103 Section 103. 854.05 (5) of the statutes is renumbered 854.05 (5) (a) and amended to read: