AB1038: Bill Text

AB1038, s. 150 Section 150. 854.18 (3) of the statutes is amended to read:

AB1038,49,19 854.18 (3) If the governing instrument expresses an order of abatement, or if the decedent's transferor's estate plan or the express or implied purpose of the transfer, as expressed, implied, or construed through extrinsic evidence, would be defeated by the order of abatement under sub. (1), the shares of the distributees abate as necessary to give effect to the intention of the transferor.

AB1038, s. 151 Section 151. 854.20 (1) of the statutes is renumbered 854.20 (1) (a) and amended to read:

AB1038,50,2 854.20 (1) (a) Subject to par. (b) and sub. (4) (5), a legally adopted person is treated as a birth child of the person's adoptive parents and the adoptive parents are treated as the birth parents of the adopted person for purposes of intestate succession by transfers at death to, through, and from the adopted person and for purposes of any statute or other rule conferring rights upon children, issue, or relatives in connection with the law of intestate succession or governing instruments.

AB1038, s. 152 Section 152. 854.20 (2) (intro.) of the statutes is renumbered 854.20 (2) (am) (intro.) and amended to read:

AB1038,50,8 854.20 (2) (am) (intro.) Subject to sub. (4) (5), a legally adopted person ceases to be treated as a child of the person's birth parents and the birth parents cease to be treated as the parents of the child for the same purposes as under specified in sub. (1) (a), except:

AB1038, s. 153 Section 153. 854.20 (2) (a) of the statutes is renumbered 854.20 (2) (am) 1. and amended to read:

AB1038,50,15 854.20 (2) (am) 1. If a birth parent marries or remarries and the parent-child relationship between the child is adopted by the stepparent, and one birth parent is replaced by adoption, but the relationship to the other birth parent is not replaced, then for all purposes the child is continues to be treated as the child of the birth parent whose spouse adopted the child relationship was not replaced.

AB1038, s. 154 Section 154. 854.20 (2) (am) 2. b. and c. of the statutes are created to read:

AB1038,50,20 854.20 (2) (am) 2. b. Subd. 2. a. applies only if the adopted person was a minor at the time of adoption or if the adoptive parent raised the adopted person in a parent-like relationship beginning on or before the child's 15th birthday and lasting for a substantial period or until adulthood.

AB1038,50,22 c. Subdivision 2. a. does not apply if the parental rights of the deceased birth parent had been terminated.

AB1038, s. 155 Section 155. 854.20 (2) (b) of the statutes is renumbered 854.20 (2) (am) 2. a. and amended to read:

AB1038,51,7 854.20 (2) (am) 2. a. If Subject to subd. 2. b. and c., if a birth parent of a marital child born to married parents dies and the other birth parent subsequently remarries and the child is adopted by the stepparent, the child is continues to be treated as the child of the deceased birth parent for purposes of inheritance transfers at death through that parent and for purposes of any statute or other rule conferring rights upon children, issue or relatives of that parent under the law of intestate succession or governing instruments.

AB1038, s. 156 Section 156. 854.20 (3) of the statutes is renumbered 854.20 (2) (bm) and amended to read:

AB1038,51,13 854.20 (2) (bm) Sequential adoption. Subject to sub. (4) (5), if an adoptive parent dies or his or her parental rights are terminated in a legal proceeding and the adopted child is subsequently adopted by another person, the former adoptive parent is considered to be a birth parent for purposes of this section subsection.

AB1038, s. 157 Section 157. 854.20 (4) of the statutes is renumbered 854.20 (1) (b), and 854.20 (1) (b) (intro.) and 3., as renumbered, are amended to read:

AB1038,51,17 854.20 (1) (b) Applicability. (intro.) Subsections (1), (2) and (3) apply Subject to sub. (5), par. (a) applies only if at least one of the following applies:

AB1038,51,21 3. The adoptive parent raised the adopted person was raised as a member of the household by the adoptive parent from in a parent-like relationship beginning on or before the child's 15th birthday or before and lasting for a substantial period or until adulthood.

AB1038, s. 158 Section 158. 854.20 (5) of the statutes is amended to read:

AB1038,52,2 854.20 (5) 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. 159 Section 159. 854.21 (1) (a) (intro.) of the statutes is renumbered 854.21 (1) (a) and amended to read:

AB1038,52,11 854.21 (1) (a) Except as provided in par. (b) or sub. (7), a gift of property by a governing instrument to a class of persons described as " issue," "lawful issue," "children,'' "grandchildren," "descendants," "heirs," "heirs of the body," "next of kin," "distributees," or the like includes a person adopted by a person whose birth child would be a member of the class, and issue of the adopted person, if the conditions for membership in the class are otherwise satisfied and any of the following applies: at least one of the criteria under s. 854.20 (1) (b) 1., 2., and 3. is satisfied.

AB1038, s. 160 Section 160. 854.21 (1) (a) 1., 2. and 3. of the statutes are repealed.

AB1038, s. 161 Section 161. 854.21 (1) (b) of the statutes is amended to read:

AB1038,52,19 854.21 (1) (b) Except as provided in sub. (7), a gift under par. (a) of property by a governing instrument to a class of persons described as "issue," "lawful issue," "children," "grandchildren," "descendants," "heirs," "heirs of the body," "next of kin," "distributees," or the like excludes a birth child and his or her issue otherwise within the class if the birth child has been adopted and would cease to be treated as a child of the birth parent under s. 854.20 (2).

AB1038, s. 162 Section 162. 854.21 (7) of the statutes is amended to read:

AB1038,52,25 854.21 (7) 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 inapplicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 163 Section 163. 854.22 (4) of the statutes is amended to read:

AB1038,53,6 854.22 (4) 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 inapplicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 164 Section 164. 854.23 (1) of the statutes is amended to read:

AB1038,53,11 854.23 (1) Definition. In this section, "governing instrument" includes an instrument described in s. 854.01, a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m), a confirmation under s. 867.046 (2), or a recorded application under s. 867.046 (5).

AB1038, s. 165 Section 165. 856.05 (5) of the statutes is amended to read:

AB1038,53,15 856.05 (5) Applicability of section. This section applies to wills, codicils, documents incorporated by reference under s. 853.32 (1) or (2) and information needed for proof of a lost missing will under s. 856.17.

AB1038, s. 166 Section 166. 856.15 (1) of the statutes is amended to read:

AB1038,53,24 856.15 (1) Generally. The court may grant probate of an uncontested will on the execution in open court by one of the subscribing witnesses of a sworn statement that the will was executed as required by the statutes and that the testator was of sound mind, of full age, and not acting under any restraint at the time of the execution thereof. If an uncontested will contains an attestation clause showing compliance with the requirements for execution under s. 853.03 or 853.05 or includes an affidavit in substantially the form under s. 853.04 (1) or (2), the court may grant probate without any testimony or other evidence.

AB1038, s. 167 Section 167. 856.16 of the statutes is repealed and recreated to read:

AB1038,54,3 856.16 Self-proved will. (1) Unless there is proof of fraud or forgery in connection with the affidavit, if a will includes an affidavit in substantially the form under s. 853.04 (1) or (2), all of the following apply:

AB1038,54,5 (a) The will is conclusively presumed to have been executed in compliance with s. 853.03.

AB1038,54,7 (b) Other requirements related to the valid execution of the will are rebuttably presumed.

AB1038,54,9 (c) A signature affixed to the affidavit is considered a signature affixed to the will, if necessary to prove the due execution of the will.

AB1038,54,11 (2) Admission of a will under s. 856.13 or 856.15 is not dependent on the existence of a valid affidavit under s. 853.04.

AB1038, s. 168 Section 168. 856.17 of the statutes is amended to read:

AB1038,54,17 856.17 Lost Missing will, how proved. If any will is lost, destroyed by accident or, destroyed without the testator's consent, unavailable but revived under s. 853.11 (6), or otherwise missing, the court has power to take proof of the execution and validity of the will and to establish the same. The petition for the probate of the will shall set forth the provisions thereof of the will.

AB1038, s. 169 Section 169. 857.03 (2) of the statutes is renumbered 766.31 (3) (b) 3., and 766.31 (3) (b) 3. (intro.) and a., as renumbered, are amended to read:

AB1038,55,2 766.31 (3) (b) 3. (intro.) 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. or 2., but court approval of the exchange is not required for the agreement under subd. 1. or 2. to be effective. If the court approves the exchange, the personal representative 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:

AB1038,55,4 a. Occur before the final distribution of the estate assets under the governing instrument;

AB1038, s. 170 Section 170. 857.03 (2m) of the statutes is created to read:

AB1038,55,8 857.03 (2m) The surviving spouse and the personal representative may petition the court to approve an exchange of interests in marital property as provided in s. 766.31 (3) (b) 3.

AB1038, s. 171 Section 171. 859.01 of the statutes is amended to read:

AB1038,55,15 859.01 Time for filing claims. When an application for administration is filed, the court, or the probate registrar under informal administration proceedings, shall by order set a date as the deadline for filing a claim against the decedent's estate. The date shall be not less than 3 nor more than 4 months from the date of the order. If a claim is not filed by the deadline, the consequences provided in s. 859.02 apply.

AB1038, s. 172 Section 172. 859.02 (2m) of the statutes is created to read:

AB1038,55,17 859.02 (2m) (a) A claim based on a tort is subject to s. 859.45.

AB1038,55,18 (b) A claim of a creditor without notice is subject to s. 859.48.

AB1038, s. 173 Section 173. 861.01 (3) of the statutes is renumbered 766.31 (7m) and amended to read:

AB1038,55,25 766.31 (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 the 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.

AB1038, s. 174 Section 174. 861.01 (3m) of the statutes is created to read:

AB1038,56,4 861.01 (3m) Personal injury damages; lost earnings. Section 766.31 (7m) determines the rights of a surviving spouse to that part of a personal injury claim that represents future lost earnings of the surviving spouse.

AB1038, s. 175 Section 175. 861.01 (4) of the statutes is created to read:

AB1038,56,8 861.01 (4) Enforcement of surviving spouse's marital property rights in nonprobate assets. Section 766.70 applies to enforcement of a surviving spouse's marital property rights in nonprobate assets.

AB1038, s. 176 Section 176. 861.01 (5) of the statutes is created to read:

AB1038,56,11 861.01 (5) Division of marital property on aggregate basis. Section 766.31 (3) (b) determines how marital property may be divided upon the death of a spouse.

AB1038, s. 177 Section 177. Subchapter II (title) of chapter 861 [precedes 861.018] of the statutes is amended to read:

AB1038,56,14 CHAPTER 861

AB1038,56,18 SUBCHAPTER II ELECTIVE SHARE IN DEFERRED MARITAL PROPERTY elective share amount

AB1038, s. 178 Section 178. 861.02 (title) of the statutes is amended to read:

AB1038,56,20 861.02 (title) Deferred marital property elective share amount.

AB1038, s. 179 Section 179. 861.02 (2) (b) (intro.) of the statutes is amended to read:

AB1038,57,2 861.02 (2) (b) (intro.) The augmented deferred marital property estate is the total value of the deferred marital property of the spouses, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction. It includes all types of property that fall within any of the following categories:

AB1038, s. 180 Section 180. 861.02 (4) of the statutes is amended to read:

AB1038,57,8 861.02 (4) Satisfaction. Satisfaction of the augmented deferred marital property elective share amount is governed by ss. 861.06, 861.07, and 861.11, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction.

AB1038, s. 181 Section 181. 861.02 (6) of the statutes is amended to read:

AB1038,57,11 861.02 (6) Waiver. Waiver of the deferred marital property elective share amount is governed by s. 861.10.

AB1038, s. 182 Section 182. 861.02 (7) (b) of the statutes is amended to read:

AB1038,57,15 861.02 (7) (b) If a decedent who is not domiciled in this state owns real property in this state, the right rights of the surviving spouse to take an elective share in that property is are governed by s. 861.20.

AB1038, s. 183 Section 183. 861.02 (8) of the statutes is repealed and recreated to read:

AB1038,57,19 861.02 (8) Effect if death caused by spouse. Section 854.14 (2) (c) and (3m) (d) applies to election of deferred marital property if the decedent's surviving spouse unlawfully and intentionally killed the decedent.

AB1038, s. 184 Section 184. 861.04 (2) of the statutes is repealed.

AB1038, s. 185 Section 185. 861.04 (2m) of the statutes is created to read:

AB1038,57,24 861.04 (2m) When the surviving spouse is treated as the decedent under sub. (1), the decedent is not treated as the surviving spouse for the purposes of s. 861.05 (1) (e) or (2m).

AB1038, s. 186 Section 186. 861.05 (1) (c) of the statutes is amended to read:

AB1038,58,3 861.05 (1) (c) Transfers of deferred marital property to persons other than the surviving spouse who did not make the transfer, with the written joinder or written consent of the surviving that spouse.

AB1038, s. 187 Section 187. 861.05 (1) (e) of the statutes is created to read:

AB1038,58,8 861.05 (1) (e) The deferred marital property component of any deferred employment benefit plan, or of assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, held by the surviving spouse that would have terminated under s. 766.62 (5) had it been marital property.

AB1038, s. 188 Section 188. 861.05 (2) (title) of the statutes is amended to read:

AB1038,58,10 861.05 (2) (title) Valuation of decedent's property and transfers.

AB1038, s. 189 Section 189. 861.05 (2m) of the statutes is created to read:

AB1038,58,16 861.05 (2m) Valuation of surviving spouse's property and transfers. The surviving spouse's property included in the augmented deferred marital property estate under s. 861.04 (1) is valued in the same manner as the decedent spouse's property included in the augmented deferred marital property estate is valued under sub. (2), subject to the following:

AB1038,58,19 (a) The surviving spouse shall be treated as having died after the decedent on the date of the decedent's death notwithstanding the 120-hour survival requirement under s. 854.03 (1).

AB1038,58,23 (b) Life insurance on the surviving spouse's life shall have the value of the deferred marital property component of the interpolated terminal reserve and the unused portion of the term premium of the policy as of the date of the decedent's death.