All property of spouses is presumed to be marital property.
(3) Spouse's interest in marital property.
Each spouse has a present undivided one-half interest in each item of marital property, subject to all of the following:
Terminable interest in deferred employment benefit plan.
As provided in s. 766.62 (5)
, the marital property interest of the nonemployee spouse in a deferred employment benefit plan or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan terminates at the death of the nonemployee spouse if he or she predeceases the employee spouse.
Division based on aggregate value at death. 766.31(3)(b)1.1.
Spouses may provide in a marital property agreement that at the death of a spouse some or all of their marital property will be divided based on aggregate value rather than divided item by item. However, at the death of a spouse, a marital property agreement is not necessary for a division of marital property that is not item by item.
The surviving spouse and the successor in interest to the decedent's share of marital property may enter into an agreement providing that some or all of the marital property in which each has an interest will be divided based on aggregate value rather than divided item by item.
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.
, but court approval of the exchange is not required for the agreement under subd. 1.
to be effective. If the court approves the exchange, the 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:
Occur before the final distribution of the assets under the governing instrument;
Be composed of items which are fairly representative of the appreciation and depreciation that has occurred since the date of death;
Be composed of items having a fair market value at the time of exchange equal to what would have been distributed had no exchange request been made, including any money used in the exchange; and
Be reported with a written description of each item, its basis and its fair market value at the time of exchange in the manner prescribed by the department of revenue.
(4) Classification of income.
Except as provided under subs. (7) (a)
, income earned or accrued by a spouse or attributable to property of a spouse during marriage and after the determination date is marital property.
(5) Transfer to a trust.
The transfer of property to a trust does not by itself change the classification of the property.
(6) Property owned at determination date. 766.31(6)(a)(a)
Date of marriage same as determination date.
If the date of marriage is the same as the determination date, the property owned at the determination date is individual property of the owning spouse.
Date of marriage prior to determination date.
If the date of marriage precedes the determination date, the property owned at the determination date is not classified by this chapter but is subject to all of the following:
2. Subsections (8)
govern property acquired while the spouses were married but before the determination date if the property would have been individual property had it been acquired after the determination date.
3. Subsections (8)
and s. 861.02
govern property acquired while the spouses were married but before the determination date if the property would have been marital property had it been acquired after the determination date.
(7) Individual property after determination date.
Property acquired by a spouse during marriage and after the determination date is individual property if acquired by any of the following means:
By gift during lifetime or by a disposition at death by a 3rd person to that spouse and not to both spouses. A distribution of principal or income from a trust created by a 3rd person to one spouse is the individual property of that spouse unless the trust provides otherwise.
In exchange for or with the proceeds of other individual property of the spouse.
From appreciation of the spouse's individual property except to the extent that the appreciation is classified as marital property under s. 766.63
By a decree, marital property agreement or reclassification under sub. (10)
designating it as the individual property of the spouse.
As a recovery for damage to property under s. 766.70
, except as specifically provided otherwise in a decree or marital property agreement.
As a recovery for personal injury except for the amount of that recovery attributable to expenses paid or otherwise satisfied from marital property and except for the amount attributable to loss of income during marriage.
(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 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.
(7p) Unilateral statement.
Income attributable to all or specified property other than marital property, with respect to which a spouse has executed under s. 766.59
a statement unilaterally designating that income as his or her individual property, is individual property.
(8) Rights in property acquired before determination date.
Except as provided otherwise in this chapter, the enactment of this chapter does not alter the classification and ownership rights of property acquired before the determination date or the classification and ownership rights of property acquired after the determination date in exchange for or with the proceeds of property acquired before the determination date.
(9) Treatment of property acquired before the determination date.
Except as provided otherwise in this chapter and except to the extent that it would affect the spouse's ownership rights in the property existing before the determination date, during marriage the interest of a spouse in property owned immediately before the determination date is treated as if it were individual property.
Spouses may reclassify their property by gift, conveyance, as defined in s. 706.01 (4)
, signed by both spouses, marital property agreement, written consent under s. 766.61 (3) (e)
or unilateral statement under s. 766.59
and, if the property is a security, as defined in s. 705.21 (11)
, by an instrument, signed by both spouses, which conveys an interest in the security. If a spouse gives property to the other spouse and intends at the time the gift is made that the property be the individual property of the donee spouse, the income from the property is the individual property of the donee spouse unless a contrary intent of the donor spouse regarding the classification of income is established.
NOTE: 1991 Wis. Act 301
, which affected this section, contains extensive legislative council notes.
Marital property presumptions and tracing principals are applied. In Matter of Estate of Lloyd, 170 Wis. 2d 240
, 487 N.W.2d 644
(Ct. App. 1992).
The marital property law does not reduce a non-negligent mother's wrongful death recovery for the father's contributory negligence in their child's death. Smith v. State Farm Fire & Casualty Co. 192 Wis. 2d 322
, 531 N.W.2d 376
(Ct. App. 1995).
A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank, 204 Wis. 2d 426
, 555 N.W.2d 655
(Ct. App. 1996), 95-1850
The termination under sub. (3) of a marital property interest in pension benefits did not prevent the application of the equitable principle that a murderer should not profit from the crime. The trial court acted properly in imposing a constructive trust on the decedent's marital property interest in the murderer's pension benefits. Estate of Hackl v. Hackl, 231 Wis. 2d 43
, 604 N.W.2d 579
(Ct. App. 1999), 99-0499
Irreconcilable differences: Income from separate property under divorce law and under Wisconsin's marital property act. Bascom. 70 MLR 41 (1986).
The effects of the Wisconsin marital property act on trusts: Whose property is it? Kusky, WBB March, 1985.
Management and control of property of spouses. 766.51(1)(1)
A spouse acting alone may manage and control:
That spouse's property that is not marital property.
Except as provided in subs. (2)
, marital property held in that spouse's name alone or not held in the name of either spouse.
Marital property held in the names of both spouses in the alternative, including marital property held in a form designating the holder by the words "(name of one spouse) or (name of other spouse)".
A policy of insurance if that spouse is designated as the owner on the records of the policy issuer.
Any right of an employee under a deferred employment benefit plan that accrues as a result of that spouse's employment.
A claim for relief vested in that spouse by other law.
Notwithstanding any provision in this section except par. (b)
, for the purpose of obtaining an extension of credit for an obligation described under s. 766.55 (2) (b)
, a spouse acting alone may manage and control all of the marital property.
Unless the spouse acting alone may otherwise under this section manage and control the property, the right to manage and control marital property under this subsection does not include the right to manage and control marital property described in s. 766.70 (3) (a)
or the right to assign, create a security interest in, mortgage or otherwise encumber marital property.
Spouses may manage and control marital property held in the names of both spouses other than in the alternative only if they act together.
The right to manage and control marital property transferred to a trust is determined by the terms of the trust.
The right to manage and control marital property permits gifts of that property, subject to remedies under this chapter.
The right to manage and control marital property does not determine the classification of property of the spouses and does not rebut the presumption under s. 766.31 (2)
The enactment of this chapter does not affect the right to manage and control any property of either or both spouses acquired before the determination date.
A court may appoint a conservator or guardian under ch. 54
to exercise a disabled spouse's right to manage and control marital property.
If an executory contract for the sale of property is entered into by a person having the right of management and control of the property, the rights of all persons then having or thereafter acquiring an interest in the property under this chapter are subject to the terms of the executory contract. This subsection applies to contracts entered into before or after the determination date.
At the death of a spouse if property described under s. 766.70 (3) (a)
is held by either spouse, but not in the names of both spouses, such property may be subject to the management and control of the holding spouse as provided under s. 857.015
Gifts of marital property to 3rd persons.
A spouse acting alone may give to a 3rd person marital property that the spouse has the right to manage and control only if the value of the marital property given to the 3rd person does not aggregate more than either $1,000 in a calendar year, or a larger amount if, when made, the gift is reasonable in amount considering the economic position of the spouses. Any other gift of marital property to a 3rd person is subject to s. 766.70 (6)
unless both spouses act together in making the gift. Under this section and for the purpose of s. 766.70 (6) (a)
, in the case of a gift of marital property by a spouse to a 3rd person in which the donor spouse has retained an interest, the gift shall be valued at the full value of the entire transfer of marital property, regardless of any retained interest or interest donated to the other spouse. For purposes of this section only, a gift of a life insurance policy by a spouse to a 3rd person shall be valued at the amount payable under the policy if the insured died at the time the gift was made.
History: 1983 a. 186
; 1985 a. 37
Obligations of spouses. 766.55(1)
An obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, is presumed to be incurred in the interest of the marriage or the family. A statement separately signed by the obligated or incurring spouse at or before the time the obligation is incurred stating that the obligation is or will be incurred in the interest of the marriage or the family is conclusive evidence that the obligation to which the statement refers is an obligation in the interest of the marriage or family, except that the existence of that statement does not affect any interspousal right or remedy.
After the determination date all of the following apply:
A spouse's obligation to satisfy a duty of support owed to the other spouse or to a child of the marriage may be satisfied only from all marital property and all other property of the obligated spouse.
An obligation incurred by a spouse in the interest of the marriage or the family may be satisfied only from all marital property and all other property of the incurring spouse.
An obligation incurred by a spouse before or during marriage that is attributable to an obligation arising before marriage or to an act or omission occurring before marriage may be satisfied only from property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the marriage.
An obligation incurred by a spouse before, on or after January 1, 1986, that is attributable to an obligation arising before January 1, 1986, or to an act or omission occurring before January 1, 1986, may be satisfied only from property of that spouse that is not marital property and from that part of marital property which would have been the property of that spouse but for the enactment of this chapter.
An obligation incurred by a spouse during marriage, resulting from a tort committed by the spouse during marriage, may be satisfied from the property of that spouse that is not marital property and from that spouse's interest in marital property.
Any other obligation incurred by a spouse during marriage, including one attributable to an act or omission during marriage, may be satisfied only from property of that spouse that is not marital property and from that spouse's interest in marital property, in that order.
Unless the dissolution decree or any amendment to the decree so provides, no income of a nonincurring spouse is available for satisfaction of an obligation under sub. (2) (b)
after entry of the decree. Marital property assigned to each spouse under that decree is available for satisfaction of such an obligation to the extent of the value of the marital property at the date of the decree. If a dissolution decree provides that the nonincurring spouse is responsible for satisfaction of the obligation, the obligation may be satisfied as if both spouses had incurred the obligation.
This chapter does not alter the relationship between spouses and their creditors with respect to any property or obligation in existence on the determination date. An obligation of a guarantor, surety or indemnitor arising after the determination date under a guaranty or contract of indemnity or surety executed before the determination date is an obligation in existence on the determination date.
Any written consent signed by a creditor which diminishes the rights of the creditor provided in this section is binding on the creditor.
Except as provided under s. 766.56 (2) (c)
, no provision of a marital property agreement or of a decree under s. 766.70
adversely affects the interest of a creditor unless the creditor had actual knowledge of that provision when the obligation to that creditor was incurred or, in the case of an open-end plan, as defined under s. 766.555 (1) (a)
, when the plan was entered into. If a creditor obtains actual knowledge of a provision of a marital property agreement or decree after an obligation is incurred or an open-end plan is entered into, the provision does not adversely affect the interest of the creditor with respect to that obligation or plan, including any renewal, extension, modification or use of the obligation or plan. The effect of this subsection may not be varied by a marital property agreement or a decree. This subsection does not affect the application of ch. 706
This chapter does not affect the exemption of any property of spouses from availability for satisfaction of an obligation, provided by other law.
(6) Subsections (2)
and s. 859.18
do not affect the satisfaction of an obligation of a spouse from collateral or other security for that obligation.
Property available under this chapter to satisfy an obligation of a spouse is available regardless of whether the property is located in this state or whether this chapter no longer applies because one or both spouses are no longer domiciled in this state.
After the death of a spouse, property is available for satisfaction of obligations as provided in s. 859.18
Sub. (2) (c) bars the use of marital property income to satisfy pre-marital obligations, including modifications of support or maintenance under ch. 767. In re Marriage of Burger v. Burger, 144 Wis. 2d 514
, 424 N.W.2d 691
While sub. (2) (c) 2. precludes the state from satisfying a liable family member's pre-marital or pre-Act debt from a non-liable member's income, it does not preclude the department from considering the non-liable member's income in determining the liable member's ability to pay under ch. 46. In Interest of A.L.W. 153 Wis. 2d 412
, 451 N.W.2d 416
Under sub. (2) (cm) neither an innocent spouse nor an innocent spouse's insurer is liable for the tort obligations of a tortfeasor spouse. Bothe v. American Family Ins. Co., 159 Wis. 2d 378
, 464 N.W.2d 109
(Ct. App. 1990).
The presumption that a debt is incurred in the interest of marriage does not apply to an obligation for support under sub. (2) (a), and thus sub. (2m) does not apply to obligations for spousal support. St. Marys Medical Center v. Brody, 186 Wis. 2d 100
, 519 N.W.2d 713
(Ct. App. 1994).
The obligation of support is imposed under s. 765.001 and is not relieved simply because s. 766.55 (2) (a) may not apply. Sinai Samaritan Medical Center, Inc. v. McCabe, 197 Wis. 2d 709
, 541 N.W.2d 190
(Ct. App. 1995), 95-0012
The definition of "creditor" under s. 766.01 (2r) does not apply to sub. (4m). A judgment creditor is a creditor for purposes of sub. (4m) and must have notice of the marital property agreement at the time the misconduct resulting in the judgment occurred in order for the agreement to be effective against the creditor. The Journal Sentinel, Inc. v. Schultz, 2001 WI App 260, 248 Wis. 2d 791
, 638 N.W.2d 76
A creditor's right to reach property subject to division in a divorce is not determined by s. 767.255 [now s. 767.61], but is driven solely by the classification into which the obligation falls under this section. A restitution order imposed by a criminal judgment for conversion was an obligation resulting from a tort committed by the incurring spouse under sub. (2) (cm). Whether an obligation resulted from a tort requires examination of the spouse's conduct that gave rise to the claim made. An individual's conduct may constitute a tort without a civil judgment so concluding. Sokaogon Gaming Enterprise v. Curda-Derickson, 2003 WI App 167, 266 Wis. 2d 453
, 668 N.W.2d 736
Necessaries and family purpose debts. Rubenzer. Wis. Law. Oct. 1996.