1997 Wisconsin Act 188

(b) Property acquired with the consideration received in exchange for the property that is the subject of the transfer.

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

(a) Original recipients of the decedent's transfers of deferred marital property to others, irrespective of whether the recipient has the property or its proceeds.

(b) Donees of the recipients under par. (a) if the donees have the property or its proceeds. If a donee has neither the property nor its proceeds but knew or should have known of the liability under this section, the donee remains liable for his or her share of the prorated contribution.

(3) Mode of satisfaction. (a) Subject to par. (b), a person who is liable under sub. (2) may either give up the proportional part of the decedent's transfers to him or her or pay the value of the amount for which he or she is liable.

(b) On petition of the surviving spouse showing that the mode of satisfaction chosen in par. (a) will create a hardship for the surviving spouse, the court may order that a different mode of satisfaction be used.

(4) Effect of federal preemption. If any provision of this subchapter is preempted by federal law with respect to any property interest or benefit that is included under s. 861.03 and that would pass but for that preemption to a person other than the surviving spouse, the recipient, unless he or she is a recipient for value, is subject to subs. (1) to (3).

188,197 Section 197 . 861.08 of the statutes is created to read:

861.08 Proceeding for election; time limit. (1) Generally. Except as the time may be extended under sub. (3), in order to make the election, the surviving spouse shall, within 6 months after the date of the decedent's death, do all of the following:

(a) File a petition for the election with whichever of the following applies:

1. The court that has jurisdiction of the probate proceedings relating to the decedent's estate if a judicial proceeding has been commenced.

2. The court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence if no judicial proceeding has commenced.

(b) Mail or deliver a copy of the petition to the personal representative, if any, of the decedent's estate.

(2) Notification of interested parties. The surviving spouse shall give notice, in the manner provided in ch. 879, of the time and place set for hearing the petition to any persons who may be adversely affected by the election.

(3) Extension of time for election. (a) Subject to par. (b), the court may grant the surviving spouse an extension for making an election if the surviving spouse petitions the court for an extension, gives notice as specified in sub. (2) and shows cause for an extension.

(b) The petition for extension of the time for making an election must be filed within 6 months after the decedent's death, unless the court finds all of the following:

1. That the surviving spouse was prevented from filing the action or naming a particular interested party for reasons beyond his or her control.

2. That failure to extend the time for making an election will result in hardship for the surviving spouse.

(4) Withdrawal of election. The surviving spouse may withdraw the petition for an election at any time before the probate court has entered the final determination of the distribution of the decedent's estate.

(5) Court determination of liability. (a) After notice and hearing, the court shall determine the deferred marital property elective share amount and shall determine the property that satisfies that amount under ss. 861.06 and 861.07.

(b) If the personal representative does not hold the money or property included in the augmented deferred marital property estate, the court shall determine the liability of any person or entity that has any interest in the money or property or that holds that money or property.

(c) The surviving spouse may choose to seek relief from fewer than all recipients. However, any such action shall not cause any other recipient's liability to exceed the amount that he or she would have had to pay if all recipients had paid a prorated share.

(6) Suits authorized. An order or judgment of the court may be enforced in a suit for contribution or payment in other courts of this state or other jurisdictions.

188,198 Section 198 . 861.09 of the statutes is repealed and recreated to read:

861.09 Right of election by or on behalf of surviving spouse. The surviving spouse must be living in order for an election to be filed. If the surviving spouse does not personally file the election, it may be filed on the surviving spouse's behalf by the spouse's conservator, guardian or guardian ad litem, or by an agent of the spouse acting under a power of attorney.

188,199 Section 199 . 861.10 of the statutes is created to read:

861.10 Waiver of right to elect; failure to elect. (1) Right to elect may be waived. The right to elect a deferred marital property elective share may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver shall 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.

(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.

(3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of property and is not a gift from the surviving spouse to the decedent spouse's probate estate or to the beneficiaries of other transfers.

188,200 Section 200 . 861.11 of the statutes is repealed and recreated to read:

861.11 Protection of payers and other 3rd parties. (1) Definition. In this section, “governing instrument" includes a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m) or a recorded application under s. 867.046 (5).

(2) Payer not liable until notice received. (a) 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 or that a petition for the election has been filed is not liable for any of the following:

1. Causing any payment, item of property or other benefit included in the augmented deferred marital property estate under s. 861.03, to transfer directly to the beneficiary designated in a governing instrument.

2. Any other action in good faith reliance on the validity of a governing instrument.

(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 or written notice that a petition for the elective share has been filed.

(3) Method of notice to payers. A written notice of the intent to file a petition for the election or written notice that a petition for the election has been filed shall fulfill one of the following requirements:

(a) Be mailed to the payer's or other 3rd party's main office or home by registered or certified mail, return receipt requested.

(b) Be served upon the payer or other 3rd party in the same manner as a summons in a civil action.

(4) Optional payment of proceeds to court. (a) Upon receipt of written notice of the intent to file, or the filing of, a petition for the election, a payer or other 3rd party may pay any amount owed or transfer or deposit any item of property to or with whichever of the following applies:

1. The court that has jurisdiction of the probate proceedings relating to the decedent's estate if proceedings have been commenced.

2. The court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence, if no judicial proceeding has commenced.

(b) Payments, transfers or deposits made to the court discharge the payer or other 3rd party from all claims for amounts paid or the value of property transferred or deposited.

(c) The court shall hold the funds or items of property. After the court makes its determination under s. 861.08 (5), it shall order disbursement in accordance with that determination. The court shall order disbursement to the beneficiary designated in the governing instrument if either of the following conditions applies:

1. No petition is filed in the court within the specified time under s. 861.08 (1).

2. A petition was filed but withdrawn under s. 861.08 (4) with prejudice.

(d) If payments have been made to the court or if property has been deposited with the court under par. (a), the court may order that all or part of the payments or property be paid to the beneficiary who is designated in the governing instrument, upon that beneficiary's petition to the court. Those payments shall be in an amount and subject to conditions consistent with this subchapter.

(5) Protection of financial institutions. (a) In this subsection:

1. “Account" has the meaning given in s. 705.01 (1) or 710.05 (1) (a).

2. “Financial institution" has the meaning given in s. 705.01 (3).

(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.

(c) If a financial institution has reason to believe that a dispute exists as to the rights of parties, or their successors, to an account subject to a governing instrument, the financial institution may, but is not required to, do any of the following:

1. Deposit the account with a court as provided in sub. (4).

2. Refuse to transfer the account to any person.

(d) The protection afforded a financial institution under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of accounts.

188,201 Section 201 . 861.13 of the statutes is repealed.

188,202 Section 202 . Subchapter III (title) of chapter 861 [precedes 861.17] of the statutes is created to read:

Chapter 861

Subchapter III
Other rights,
Allowances and exemptions

188,203 Section 203 . 861.21 of the statutes is created to read:

861.21 Assignment of home to surviving spouse. (1) Definitions. In this section:

(a) “Governing instrument" has the meaning given in s. 854.01.

(b) “Home" means any dwelling in which the decedent had an interest and that at the time of the decedent's death the surviving spouse occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse. “Home" includes a house, a mobile home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse and a building used in part for a dwelling and in part for commercial or business purposes. “Home" includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under sub. (5).

(2) If marital 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.

(3) If interest in home in intestate estate. Subject to subs. (4) and (5), if the intestate estate includes an interest in a home, the decedent's entire interest shall be assigned to the surviving spouse if the surviving spouse petitions the court requesting such a distribution. The surviving spouse shall file the petition within 6 months after the decedent's death, unless the court extends the time for filing.

(4) Payment by surviving spouse. The court shall assign the interest in the home to the surviving spouse upon payment of the value of the interest that does not pass to the surviving spouse under intestacy or under the governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse may use assets due him or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court extends the time, the surviving spouse shall have one year from the decedent's death to pay the value of the assigned interest.

(5) Severance of home from surrounding land. On petition of the surviving spouse or of any interested person that part of the land is not necessary for dwelling purposes and that it would be inappropriate to assign all of the surrounding land as the home, the court may set off for the home as much of the land as is necessary for a dwelling. In determining how much land should be set off, the court shall take into account the use and marketability of the parcels set off as the home and the remaining land.

188,204 Section 204 . 861.31 (1) of the statutes is renumbered 861.31 (1m) and amended to read:

861.31 (1m) The court may, without notice or on such notice as the court directs, order payment by the personal representative or special administrator of an allowance as it determines necessary or appropriate for the support of the surviving spouse and any minor dependent children of the decedent during the administration of the estate. In making or denying the order the court shall consider the size of the probate estate, other resources available for support, existing standard of living, and any other factors it considers relevant.

188,205 Section 205 . 861.31 (1c) of the statutes is created to read:

861.31 (1c) In this section, “dependent child" means any of the following:

(a) A minor child of the decedent.

(b) An adult child of the decedent who was being supported by the decedent at the time of the decedent's death.

188,206 Section 206 . 861.31 (2) of the statutes is amended to read:

861.31 (2) The allowance may be made to the spouse for support of the spouse and any minor dependent children of the decedent, or separate allowances may be made to the spouse and to the minor dependent children of the decedent or their guardian if the minor children do not reside with the surviving spouse or if for any other reason, if any, if the court finds separate allowances advisable. If there is no surviving spouse the allowance may be made to the minor dependent children of the decedent or to their guardian, if any.

188,207 Section 207 . 861.31 (4) of the statutes is renumbered 861.31 (4) (intro.) amended to read:

861.31 (4) (intro.) The court may direct that the allowance be charged against income or principal, either as an advance or otherwise, but in no event may an allowance for support of minor dependent children of the decedent be charged against the income or principal interest of the surviving spouse. The court may direct that the allowance for support of the surviving spouse, not including any allowance for support of minor dependent children, be applied against any in satisfaction of any of the following:

(b) Any right of the surviving spouse to elect under ss. s. 861.02 (1) and 861.03.

188,208 Section 208 . 861.31 (4) (a) of the statutes is created to read:

861.31 (4) (a) Any entitlement of the surviving spouse under s. 853.11 (2).

188,209 Section 209 . 861.33 (title) of the statutes is amended to read:

861.33 (title) Selection of personalty by surviving spouse or children.

188,210 Section 210 . 861.33 (1) (a) (intro.) of the statutes is amended to read:

861.33 (1) (a) (intro.) Subject to this section, in addition to all allowances and distributions, the surviving spouse, or if there is no surviving spouse the decedent's children, may file with the court a written selection of the following personal property, which shall thereupon be transferred to the spouse or children by the personal representative:

188,211 Section 211 . 861.33 (1) (a) 4. of the statutes is amended to read:

861.33 (1) (a) 4. Other tangible personalty not used in trade, agriculture or other business, not to exceed $1,000 $3,000 in inventory value.

188,212 Section 212 . 861.33 (1) (b) of the statutes is amended to read:

861.33 (1) (b) The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse or children may in every case select the normal household furniture, furnishings and appliances necessary to maintain the home. For this purpose antiques, family heirlooms and collections which are specifically bequeathed are not classifiable as normal household furniture or furnishings.

188,213 Section 213 . 861.33 (1) (c) of the statutes is created to read:

861.33 (1) (c) If there is no surviving spouse and the selection is being made by fewer than all of the decedent's children, the child or children selecting the property must have the written consent of all of the other children, or the selection must be approved by the court.