AB1038: Bill Text

AB1038,41,14 854.13 (2) (gm) Disclaimer by trustee. The trustee of a trust named as a recipient of property under a governing instrument may disclaim that property on behalf of the trust if the trust authorizes disclaimer by the trustee. If the trust does not authorize disclaimer by the trustee, the trustee's power to disclaim is subject to the approval of the court.

AB1038, s. 123 Section 123. 854.13 (2) (h) of the statutes is amended to read:

AB1038,41,21 854.13 (2) (h) After death. A person's right to disclaim survives the person's death and may be exercised by the person's personal representative or special administrator upon receiving approval from the court having jurisdiction of the person's estate after hearing upon notice to all persons interested in the disclaimed property, if the personal representative or special administrator has not taken any action which that would bar the right to disclaim under sub. (11) (11g).

AB1038, s. 124 Section 124. 854.13 (2) (i) of the statutes is created to read:

AB1038,41,25 854.13 (2) (i) Disclaimer of inter vivos transfers. A person who is a recipient of property under an inter vivos governing instrument, as defined in s. 700.27 (1) (c), may disclaim the property as provided in s. 700.27.

AB1038, s. 125 Section 125. 854.13 (4) (c) of the statutes is amended to read:

AB1038,42,5 854.13 (4) (c) Future right to income or profits principal. Notwithstanding pars. (a) and (b), an instrument disclaiming the future right to receive discretionary or mandatory distributions of income or profits principal from any source may be executed and delivered at any time.

AB1038, s. 126 Section 126. 854.13 (7) (title) of the statutes is amended to read:

AB1038,42,7 854.13 (7) (title) Devolution in general.

AB1038, s. 127 Section 127. 854.13 (7) (a) of the statutes is amended to read:

AB1038,42,22 854.13 (7) (a) In general. Unless the transferor of the property or donee of the power has otherwise provided Subject to pars. (bm) and (c) and subs. (8), (9), and (10), unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, the disclaimed property devolves as if the disclaimant had died before the decedent or before the effective date of the transfer under the governing instrument. If the disclaimed interest is a remainder contingent on surviving to the time of distribution, the disclaimed interest passes as if the disclaimant had died immediately before the time for distribution. If the disclaimant is an appointee under a power exercised by a governing instrument, the disclaimed property devolves as if the disclaimant had died before the effective date of the exercise of the power. If the disclaimant is a taker in default under a power created by a governing instrument, the disclaimed property devolves as if the disclaimant had predeceased the donee of the power. This paragraph is subject to subs. (8), (9) and (10).

AB1038, s. 128 Section 128. 854.13 (7) (b) of the statutes is repealed.

AB1038, s. 129 Section 129. 854.13 (7) (bm) and (c) of the statutes are created to read:

AB1038,43,8 854.13 (7) (bm) Devolution to issue of the disclaimants. Unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, if, by law or under the governing instrument, the issue of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time the disclaimed interest would have taken effect in possession or enjoyment, the disclaimed interest passes only to the issue of the disclaimant who survive when the disclaimed interest takes effect in possession or enjoyment.

AB1038,43,11 (c) Disclaimer of a devisable future interest. 1. In this paragraph, "devisable future interest" is a future interest that can be passed under the will of the person who holds the future interest.

AB1038,43,14 2. If the disclaimed interest is a devisable future interest under the law governing the transfer, then the disclaimed interest devolves as if it were a nondevisable future interest.

AB1038, s. 130 Section 130. 854.13 (8) of the statutes is amended to read:

AB1038,43,19 854.13 (8) Devolution of disclaimed interest in joint tenancy. A Unless the decedent provided otherwise in a governing instrument, either expressly or as construed from extrinsic evidence, a disclaimed interest in a joint tenancy passes to the decedent's probate estate.

AB1038, s. 131 Section 131. 854.13 (9) of the statutes is amended to read:

AB1038,43,24 854.13 (9) Devolution of disclaimed interest in survivorship marital property. A Unless the decedent provided otherwise in a governing instrument, either expressly or as construed from extrinsic evidence, a disclaimed interest in survivorship marital property passes to the decedent's probate estate.

AB1038, s. 132 Section 132. 854.13 (10) (title) of the statutes is repealed and recreated to read:

AB1038,44,4 854.13 (10) (title) Acceleration of subsequent interests when preceding interest is disclaimed.

AB1038, s. 133 Section 133. 854.13 (10) of the statutes is renumbered 854.13 (10) (a) and amended to read:

AB1038,44,17 854.13 (10) (a) Subsequent interest not held by disclaimant. Unless the governing instrument creating the future interest manifests a contrary intent provides otherwise, either expressly or as construed from extrinsic evidence, a future upon the disclaimer of a preceding interest, a subsequent interest not held by the disclaimant and limited to take effect in possession or enjoyment after the termination of the interest which that is disclaimed takes accelerates to take effect as if the disclaimant had died immediately before the effective date of the governing instrument time when the disclaimed interest would have taken effect in possession or enjoyment or, if the disclaimant is an appointee under a power exercised by a governing instrument power of appointment, as if the disclaimant had died before the effective date of the exercise of the power.

AB1038, s. 134 Section 134. 854.13 (10) (b) of the statutes is created to read:

AB1038,44,22 854.13 (10) (b) Subsequent interest held by the disclaimant. Unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, upon the disclaimer of a preceding interest, a subsequent interest held by the disclaimant does not accelerate.

AB1038, s. 135 Section 135. 854.13 (11) (title) of the statutes is repealed.

AB1038, s. 136 Section 136. 854.13 (11) (a) of the statutes is renumbered 854.13 (11g), and 854.13 (11g) (intro.) and (a), as renumbered, are amended to read:

AB1038,45,3 854.13 (11g) Actions that bar disclaimer Bar. (intro.) A Bars to a person's right to disclaim property is barred by include, but are not limited to, any of the following:

AB1038,45,6 (a) The person's assignment, conveyance, encumbrance, pledge, or transfer of the property or a contract therefor for the assignment, conveyance, encumbrance, pledge, or transfer of the property.

AB1038, s. 137 Section 137. 854.13 (11) (b) of the statutes is renumbered 854.13 (11p), and 854.13 (11p) (title), as renumbered, is amended to read:

AB1038,45,10 854.13 (11p) (title) Effect upon successors in interest of disclaimer or waiver.

AB1038, s. 138 Section 138. 854.13 (12) (b) of the statutes is amended to read:

AB1038,45,14 854.13 (12) (b) Any disclaimer that meets the requirements of section 2518 of the Internal Revenue Code, or the requirements of any other federal law relating to disclaimers, constitutes an effective disclaimer under this section or s. 700.27.

AB1038, s. 139 Section 139. 854.14 (1) of the statutes is repealed.

AB1038, s. 140 Section 140. 854.14 (3m) of the statutes is created to read:

AB1038,45,18 854.14 (3m) Additional effects if death caused by spouse. (a) Definitions. In this subsection:

AB1038,45,25 1. "Owner" means a person appearing on the records of the policy issuer as the person having the ownership interest, or means the insured if no person other than the insured appears on those records as a person having that interest. In the case of group insurance, the "owner" means the holder of each individual certificate of coverage under the group plan and does not include the person who contracted with the policy issuer on behalf of the group, regardless of whether that person is listed as the owner on the contract.

AB1038,46,1 2. "Ownership interest" means the rights of an owner under a policy.

AB1038,46,3 3. "Policy" means an insurance policy insuring the life of a spouse and providing for payment of death benefits at the spouse's death.

AB1038,46,6 4. "Proceeds" means the death benefit from a policy and all other economic benefits from it, whether they accrue or become payable as a result of the death of an insured person or upon the occurrence or nonoccurrence of another event.

AB1038,46,15 (b) Life insurance. 1. Except as provided in sub. (6), if a noninsured spouse unlawfully and intentionally kills an insured spouse, the surviving spouse's ownership interest in a policy that designates the decedent spouse as the owner and insured, or in the proceeds of such a policy, is limited to a dollar amount equal to one-half of the marital property interest in the interpolated terminal reserve and in the unused portion of the term premium of the policy on the date of death of the decedent spouse. All other rights of the surviving spouse in the ownership interest or proceeds of the policy, other than the marital property interest described in this subsection, terminate at the decedent spouse's death.

AB1038,46,21 2. Notwithstanding s. 766.61 (7) and except as provided in sub. (6), if an insured spouse unlawfully and intentionally kills a noninsured spouse, the ownership interest at death of the decedent spouse in any policy with a marital property component that designates the surviving spouse as the owner and insured is a fractional interest equal to one-half of the portion of the policy that was marital property immediately before the death of the decedent spouse.

AB1038,47,4 (c) Deferred employment benefits. Notwithstanding s. 766.62 (5) and except as provided in sub. (6), if the employee spouse unlawfully and intentionally kills the nonemployee spouse, the ownership interest at death of the decedent spouse in any deferred employment benefit, or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, that has a marital property component and that is attributable to the employment of the surviving spouse is equal to one-half of the portion of the benefit or assets that was marital property immediately before the death of the decedent spouse.

AB1038,47,11 (d) Deferred marital property. Except as provided in sub. (6), if the surviving spouse unlawfully and intentionally kills the decedent spouse, the estate of the decedent shall have the right to elect no more than 50 percent of the augmented deferred marital property estate, as determined under s. 861.02 (2), as though the decedent spouse were the survivor and the surviving spouse were the decedent. The court shall construe the provisions of ss. 861.03 to 861.11 as necessary to achieve the intent of this paragraph.

AB1038, s. 141 Section 141. 854.14 (5) (a) of the statutes is amended to read:

AB1038,47,16 854.14 (5) (a) A final judgment establishing criminal accountability for the unlawful and intentional killing of the decedent conclusively establishes the convicted individual as the decedent's killer for purposes of this section and s. 861.02 (8).

AB1038, s. 142 Section 142. 854.14 (5) (b) of the statutes is amended to read:

AB1038,47,20 854.14 (5) (b) A final adjudication of delinquency on the basis of an unlawful and intentional killing of the decedent conclusively establishes the adjudicated individual as the decedent's killer for purposes of this section and s. 861.02 (8).

AB1038, s. 143 Section 143. 854.14 (5) (c) of the statutes is amended to read:

AB1038,48,2 854.14 (5) (c) In the absence of a judgment establishing criminal accountability under par. (a) or an adjudication of delinquency under par. (b), the court, upon the petition of an interested person, shall determine whether, under based on the preponderance of the evidence standard, the killing of the decedent was unlawful and intentional for purposes of this section and s. 861.02 (8).

AB1038, s. 144 Section 144. 854.15 (1) (e) of the statutes is renumbered 854.01 (3) and amended to read:

AB1038,48,12 854.01 (3) "Revocable",," with respect to a disposition, provision, or nomination, means one under which the decedent, at the time of the divorce, annulment or similar event referred to, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the former spouse or former spouse's relative, change or revoke, regardless of whether or not the decedent was then empowered to designate himself or herself in place of the a former spouse or the former spouse's relative designee, and regardless of whether or not the decedent then had the capacity to exercise the power.

AB1038, s. 145 Section 145. 854.15 (5) (intro.) of the statutes is renumbered 854.15 (5) (am) (intro.).

AB1038, s. 146 Section 146. 854.15 (5) (a), (b), (c), (d) and (e) of the statutes are renumbered 854.15 (5) (am) 1., 2., 3., 4. and 5.

AB1038, s. 147 Section 147. 854.15 (5) (f) of the statutes is renumbered 854.15 (5) (bm) and amended to read:

AB1038,48,23 854.15 (5) (bm) There is a finding of the decedent's contrary 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 inapplicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 148 Section 148. 854.17 of the statutes is amended to read:

AB1038,49,5 854.17 Classification; how determined Marital property classification; ownership and division of marital property at death. In chs. 851 to 882, classification Classification of the property of a decedent spouse and surviving spouse is, and ownership and division of that property at the death of a spouse, are determined under ch. 766 and s. 861.01.

AB1038, s. 149 Section 149. 854.18 (1) (a) (intro.) of the statutes is amended to read:

AB1038,49,13 854.18 (1) (a) (intro.) Except as provided in sub. (3) or in connection with the share of the surviving spouse who elects to take an elective share in deferred marital property deferred marital property elective share amount of a surviving spouse who elects under s. 861.02, a the share of a surviving spouse who takes under s. 853.11 (2) 853.12, or a the share of a surviving child who takes under s. 853.25, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

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: