2009 Wisconsin Act 28

28,3243 Section 3243. 846.04 (2) of the statutes is amended to read:

846.04 (2) Except as provided in sub. (3), if a mortgage foreclosure deficiency judgment is entered on property devoted primarily to under agricultural use, as defined in s. 91.01 (5), (2), for at least 12 consecutive months during the preceding 36-month period, an action on the deficiency judgment shall be commenced within 10 years after the date on which the mortgage foreclosure deficiency judgment is entered or be barred.

28,3243c Section 3243c. 846.35 (1) (c) of the statutes, as created by 2009 Wisconsin Act 2, is renumbered 846.35 (6) and amended to read:

846.35 (6) Penalties. If a plaintiff fails to provide a notice under par. (a) in accordance with pars. (a) and (b), or fails to comply with sub. (5), the court shall award the tenant to whom the notice should have been given or who should not have named as a defendant $250 in damages, plus reasonable attorney fees. A tenant may not recover under this paragraph for more than one notice violation.

28,3243e Section 3243e. 846.35 (4) of the statutes, as created by 2009 Wisconsin Act 2, is repealed.

28,3243f Section 3243f. 846.35 (5) of the statutes is created to read:

846.35 (5) Tenant not named in complaint. In an action for foreclosure of residential real property, the complaint may not name a tenant as a defendant unless the tenant has a lien or ownership interest in the real property.

28,3244 Section 3244. 851.08 of the statutes is created to read:

851.08 Domestic partner. "Domestic partner" has the meaning given in s. 770.01 (1) and "domestic partnership" has the meaning given in s. 770.01 (2).

28,3245 Section 3245. 851.17 of the statutes is amended to read:

851.17 Net estate. "Net estate" means all property subject to administration less the property selected by the surviving spouse or surviving domestic partner under s. 861.33, the allowances made by the court under ss. 861.31, 861.35 and 861.41 except as those allowances are charged by the court against the intestate share of the recipient, administration, funeral and burial expenses, the amount of claims paid and federal and state estate taxes payable out of such property.

28,3246 Section 3246. 851.295 of the statutes is created to read:

851.295 Surviving domestic partner. "Surviving domestic partner" means a person who was in a domestic partnership under ch. 770 with the decedent, at the time of the decedent's death.

28,3247 Section 3247. 852.01 (1) (a) (intro.), 1. and 2. (intro.) and b., (b), (c), (d) and (f) (intro.) of the statutes are amended to read:

852.01 (1) (a) (intro.) To the spouse or domestic partner:

1. If there are no surviving issue of the decedent, or if the surviving issue are all issue of the surviving spouse or surviving domestic partner and the decedent, the entire estate.

2. (intro.) If there are surviving issue one or more of whom are not issue of the surviving spouse or surviving domestic partner, one-half of decedent's property other than the following property:

b. The decedent's interest in property held equally and exclusively with the surviving spouse or surviving domestic partner as tenants in common.

(b) To the issue, per stirpes, the share of the estate not passing to the spouse or surviving domestic partner, under par. (a), or the entire estate if there is no surviving spouse or surviving domestic partner.

(c) If there is no surviving spouse, surviving domestic partner, or issue, to the parents.

(d) If there is no surviving spouse, surviving domestic partner, issue, or parent, to the brothers and sisters and the issue of any deceased brother or sister per stirpes.

(f) (intro.) If there is no surviving spouse, surviving domestic partner, issue, parent, or issue of a parent, to the grandparents and their issue as follows:

28,3248 Section 3248. 852.09 of the statutes is amended to read:

852.09 Assignment of home to surviving spouse or surviving domestic partner. If the intestate estate includes an interest in a home, assignment of that interest to the surviving spouse or surviving domestic partner is governed by s. 861.21.

28,3249 Section 3249. 853.11 (2m) and (3) of the statutes are amended to read:

853.11 (2m) Premarital or predomestic partnership will. Entitlements of a surviving spouse or surviving domestic partner under a decedent's will that was executed before marriage to the surviving spouse or before recording of the domestic partnership under ch. 770 are governed by s. 853.12.

(3) Transfer to former spouse or former domestic partner. A transfer under a will to a former spouse or former domestic partner is governed by s. 854.15.

28,3250 Section 3250. 853.12 (title) of the statutes is amended to read:

853.12 (title) Premarital will or predomestic partnership will.

28,3251 Section 3251. 853.12 (1), (2) (intro.) and (a), (3) (a) and (b) and (4) (a) of the statutes are amended to read:

853.12 (1) Entitlement of surviving spouse or surviving domestic partner. Subject to sub. (3), if the testator married the surviving spouse or recorded a domestic partnership under ch. 770 with the surviving domestic partner after the testator executed his or her will, the surviving spouse or surviving domestic partner is entitled to a share of the probate estate.

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

(a) All devises to or for the benefit of the testator's children who were born before the marriage to the surviving spouse or the domestic partnership with the surviving domestic partner and who are not also the children of the surviving spouse or surviving domestic partner.

(3) (a) It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse or domestic partnership with the surviving domestic partner.

(b) It appears from the will or other evidence that the will is intended to be effective notwithstanding any subsequent marriage or domestic partnership, or there is sufficient evidence that the testator considered revising the will after marriage or domestic partnership but decided not to.

(4) (a) Amounts received by the surviving spouse under s. 861.02 and devises made by will to the surviving spouse or surviving domestic partner are applied first.

28,3252 Section 3252. 854.15 (title) of the statutes is amended to read:

854.15 (title) Revocation of provisions in favor of former spouse or former domestic partner.

28,3253 Section 3253. 854.15 (1) (b) of the statutes is renumbered 854.15 (1) (b) (intro.) and amended to read:

854.15 (1) (b) (intro.) "Divorce, annulment or similar event" means any of the following:

1. A divorce, any annulment, or any other event or proceeding that would exclude a spouse as a surviving spouse under s. 851.30.

28,3254 Section 3254. 854.15 (1) (b) 2. of the statutes is created to read:

854.15 (1) (b) 2. A termination of a domestic partnership or other event or proceeding that would exclude a person as a surviving domestic partner under s. 851.295.

28,3255 Section 3255. 854.15 (1) (c) of the statutes is amended to read:

854.15 (1) (c) "Former spouse" means a person whose marriage to the decedent or domestic partnership with the decedent has been the subject of a divorce, annulment or similar event.

28,3256 Section 3256. 854.15 (5) (am) 5. of the statutes is amended to read:

854.15 (5) (am) 5. The decedent and the former spouse have remarried or entered into a new domestic partnership before the death of the decedent.

28,3257 Section 3257. 859.25 (1) (g) of the statutes is amended to read:

859.25 (1) (g) Property assigned to the surviving spouse or surviving domestic partner under s. 861.41.

28,3258 Section 3258. 861.21 (title) of the statutes is amended to read:

861.21 (title) Assignment of home to surviving spouse or surviving domestic partner.

28,3259 Section 3259. 861.21 (1) (b) of the statutes is amended to read:

861.21 (1) (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 or surviving domestic partner occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse or surviving domestic partner. "Home" includes a house, a mobile home, a manufactured home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse or surviving domestic partner 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).

28,3260 Section 3260. 861.21 (2), (4) and (5) of the statutes are amended to read:

861.21 (2) Decedent's property interest in home. Subject to subs. (4) and (5), if a married decedent or decedent in a domestic partnership has a property interest in a home, the decedent's entire interest in the home shall be assigned to the surviving spouse or surviving domestic partner if the surviving spouse or surviving domestic partner 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 or surviving domestic partner. The surviving spouse or surviving domestic partner 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 or surviving domestic partner. The court shall assign the interest in the home under sub. (2) to the surviving spouse or surviving domestic partner upon payment of the value of the decedent's interest in the home that does not pass to the surviving spouse or surviving domestic partner under intestacy or under a governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse or surviving domestic partner 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 or surviving domestic partner 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 surviving domestic partner 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 under sub. (2), 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.

28,3261 Section 3261. 861.31 (1m), (2) and (4) (intro.) and (b) of the statutes are 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 the court determines necessary or appropriate for the support of the surviving spouse or surviving domestic partner and any minor children of the decedent during the administration of the estate. The court shall consider the size of the probate estate, other resources available for support, the existing standard of living, and any other factors it considers relevant.

(2) The court may order that an allowance be made to the spouse or surviving domestic partner for support of the spouse or surviving domestic partner and any minor children of the decedent, or that separate allowances be made to the spouse or surviving domestic partner and to the minor children of the decedent or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse or surviving domestic partner, the court may order that an allowance be made to the minor children of the decedent or to their guardian, if any.

(4) (intro.) The court may order that the allowance be charged against income or principal, either as an advance or otherwise, but the court may not order that an allowance for support of minor children of the decedent be charged against the income or principal interest of the surviving spouse or surviving domestic partner. The court may order that the allowance for support of the surviving spouse or surviving domestic partner, not including any allowance for support of minor children of the decedent, be applied in satisfaction of any of the following:

(b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02.

28,3262 Section 3262. 861.33 (title) of the statutes is amended to read:

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

28,3263 Section 3263. 861.33 (1) (a) (intro.) and 1. and (b) of the statutes are amended to read:

861.33 (1) (a) (intro.) Subject to this section, in addition to all allowances and distributions, the surviving spouse or surviving domestic partner may file with the court a written selection of the following personal property, which shall then be transferred to the spouse or domestic partner by the personal representative:

1. Wearing apparel and jewelry held for personal use by the decedent or the surviving spouse or surviving domestic partner;

(b) The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse or surviving domestic partner 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 that are specifically bequeathed are not classifiable as normal household furniture or furnishings.

28,3264 Section 3264. 861.35 (title) of the statutes is amended to read:

861.35 (title) Special allowance for support of spouse or domestic partner and support and education of minor children.

28,3265 Section 3265. 861.35 (1m), (2), (3) (a) and (4) of the statutes are amended to read:

861.35 (1m) If the decedent is survived by a spouse , domestic partner, or by minor children, the court may order an allowance for the support and education of each minor child until he or she reaches a specified age, not to exceed 18, and for the support of the spouse or domestic partner. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse or domestic partner, the court also may allot directly to the minor children household furniture, furnishings, and appliances. The court may not order an allowance under this section if any of the following applies:

(a) The decedent has amply provided for each minor child and for the spouse or domestic partner by the transfer of probate or nonprobate assets, or support and education have been provided for by any other means.

(b) In the case of minor children, the surviving spouse or surviving domestic partner is legally responsible for support and education and has ample means to provide them in addition to his or her own support.

(c) In the case of the surviving spouse or surviving domestic partner, he or she has ample means to provide for his or her support.

(2) The court may set aside property to provide an allowance and may appoint a trustee to administer the property, subject to the continuing jurisdiction of the court. If a child dies or reaches the age of 18, or if at any time the property held by the trustee is no longer required for the support of the spouse or domestic partner or the support and education of the minor child, any remaining property is to be distributed by the trustee as the court orders in accordance with the terms of the decedent's will or to the heirs of the decedent in intestacy or to satisfy unpaid claims of the decedent's estate.

(3) (a) The effect on claims under s. 859.25. The court shall balance the needs of the spouse, domestic partner, or minor children against the nature of the creditors' claims in setting the amount allowed under this section.

(4) The court may order that the allowance to the surviving spouse or surviving domestic partner, not including any allowance for the support and education of minor children, be applied in satisfaction of any of the following:

(a) Any entitlement of the surviving spouse or surviving domestic partner under s. 853.12.

(b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02 (1).

28,3266 Section 3266. 861.41 of the statutes is amended to read:

861.41 Exemption of property to be assigned to surviving spouse or surviving domestic partner. (1) After the amount of claims against the estate has been ascertained, the surviving spouse or surviving domestic partner may petition the court to set aside as exempt from the claims of creditors under s. 859.25 (1) (h) an amount of property reasonably necessary for the support of the spouse or domestic partner, not to exceed $10,000 in value, if it appears that the assets are insufficient to pay all claims and allowances and still leave the surviving spouse or surviving domestic partner such an amount of property in addition to selection and allowances.

(2) The court shall grant the petition if it determines that an assignment ahead of creditors is reasonably necessary for the support of the spouse or domestic partner. In determining the necessity and the amount of property to be assigned, the court must take into consideration the availability of a home to the surviving spouse or surviving domestic partner and all other assets and resources available for support.

28,3267 Section 3267. 867.01 (1) (b) and (3) (f) of the statutes are amended to read:

867.01 (1) (b) Whenever the estate, less the amount of the debts for which any property in the estate is security, does not exceed $50,000 in value and the decedent is survived by a spouse or domestic partner, or one or more minor children or both.

(3) (f) Order. If the court is satisfied that the estate may be settled under this section, after 30 days have elapsed since notice to the department of health services under par. (d), if that notice is required, the court shall assign the property to the persons entitled to it. If the estate may be settled under sub. (1) (b), any property not otherwise assigned shall be assigned to the surviving spouse or surviving domestic partner, or minor children or both as an allowance under s. 861.31. The court shall order any person indebted to or holding money or other property of the decedent to pay the indebtedness or deliver the property to the persons found to be entitled to receive it. The court shall order the transfer of interests in real estate, stocks or bonds registered in the name of the decedent, the title of a licensed motor vehicle, or any other form of property. If the decedent immediately prior to death had an estate for life or an interest as a joint tenant in any property in regard to which a certificate of termination in accordance with s. 867.04 has not been issued, the order shall set forth the termination of that life estate or the right of survivorship of any joint tenant. Every tract of real property in which an interest is assigned or terminated or which is security for a debt in which an interest is assigned or terminated shall be specifically described.

28,3269 Section 3269. 895.04 (2) and (6) of the statutes are amended to read:

895.04 (2) If the deceased leaves surviving a spouse or domestic partner under ch.770, and domestic partner under s. 770.05, and minor children under 18 years of age with whose support the deceased was legally charged, the court before whom the action is pending, or if no action is pending, any court of record, in recognition of the duty and responsibility of a parent to support minor children, shall determine the amount, if any, to be set aside for the protection of such children after considering the age of such children, the amount involved, the capacity and integrity of the surviving spouse or surviving domestic partner, and any other facts or information it may have or receive, and such amount may be impressed by creation of an appropriate lien in favor of such children or otherwise protected as circumstances may warrant, but such amount shall not be in excess of 50% of the net amount received after deduction of costs of collection. If there are no such surviving minor children, the amount recovered shall belong and be paid to the spouse or domestic partner of the deceased; if no spouse or domestic partner survives, to the deceased's lineal heirs as determined by s. 852.01; if no lineal heirs survive, to the deceased's brothers and sisters. If any such relative dies before judgment in the action, the relative next in order shall be entitled to recover for the wrongful death. A surviving nonresident alien spouse or a nonresident alien domestic partner under ch. 770 and minor children shall be entitled to the benefits of this section. In cases subject to s. 102.29 this subsection shall apply only to the surviving spouse's or surviving domestic partner's interest in the amount recovered. If the amount allocated to any child under this subsection is less than $10,000, s. 807.10 may be applied. Every settlement in wrongful death cases in which the deceased leaves minor children under 18 years of age shall be void unless approved by a court of record authorized to act hereunder.

(6) Where the wrongful death of a person creates a cause of action in favor of the decedent's estate and also a cause of action in favor of a spouse, domestic partner under ch. 770, or relatives as provided in this section, such spouse, domestic partner, or relatives may waive and satisfy the estate's cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse, domestic partner, or relatives.