AB1038: Bill Text

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AB1038, s. 183 Section 183. 861.02 (8) of the statutes is repealed and recreated to read: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

AB1038, s. 190 Section 190. 861.06 (title) of the statutes is amended to read:

AB1038,59,2 861.06 (title) Satisfaction of deferred marital property elective share amount.

AB1038, s. 191 Section 191. 861.06 (2) (title) of the statutes is amended to read:

AB1038,59,5 861.06 (2) (title) Initial satisfaction of deferred marital property elective share amount.

AB1038, s. 192 Section 192. 861.06 (2) (b) (intro.) of the statutes is amended to read:

AB1038,59,9 861.06 (2) (b) (intro.) All marital, individual, deferred marital, or deferred individual property, transferred to the surviving spouse, including any beneficial interest in property transferred in trust:

AB1038, s. 193 Section 193. 861.06 (2) (b) 4. a. of the statutes is amended to read:

AB1038,59,12 861.06 (2) (b) 4. a. The first $5,000 of the value of the gifts from the decedent to the surviving spouse each year. Each gift shall be valued as of the date of the gift.

AB1038, s. 194 Section 194. 861.06 (6) of the statutes is created to read:

AB1038,59,20 861.06 (6) Valuation. The value of property used to satisfy the deferred marital property elective share includes the value of any property transferred outright to the surviving spouse, the commuted value of any present or future interest in property transferred to the surviving spouse, and the commuted value of property payable to the surviving spouse under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement.

AB1038, s. 195 Section 195. 861.07 (2) (intro.) of the statutes is amended to read:

AB1038,59,24 861.07 (2) Persons liable. (intro.) The following persons are liable to make a prorated contribution toward satisfaction of the surviving spouse's deferred marital property elective share amount:

AB1038, s. 196 Section 196. 861.10 (1) of the statutes is amended to read:

AB1038,60,6 861.10 (1) Right to elect may be waived. The right to elect a deferred marital property elective share amount may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver shall must 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.

AB1038, s. 197 Section 197. 861.10 (2) of the statutes is amended to read:

AB1038,60,12 861.10 (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 amount.

AB1038, s. 198 Section 198. 861.11 (2) (a) (intro.) of the statutes is amended to read:

AB1038,60,18 861.11 (2) (a) (intro.) 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 amount or that a petition for the election has been filed is not liable for any of the following:

AB1038, s. 199 Section 199. 861.11 (2) (b) of the statutes is amended to read:

AB1038,60,23 861.11 (2) (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 amount or written notice that a petition for the elective share amount has been filed.

AB1038, s. 200 Section 200. 861.11 (5) (b) of the statutes is amended to read:

AB1038,61,9 861.11 (5) (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 amount.

AB1038, s. 201 Section 201. 861.17 (3) of the statutes is amended to read:

AB1038,61,16 861.17 (3) If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the share amount the spouse would receive under ch. 852 and this chapter. Other rules of this chapter apply so far as possible. Recovery A spouse who recovers under this subsection forfeits any power of appointment which that the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power.

AB1038, s. 202 Section 202. 861.20 (2) of the statutes is amended to read:

AB1038,61,22 861.20 (2) If a married person who does not have a domicile in this state dies and has an interest in real property in this state that is subject to administration but not disposed of by will, the surviving spouse has the same right to the property under intestate succession as if the property were located in the decedent's domicile at decedent's death.

AB1038, s. 203 Section 203. 861.21 (1) (a) of the statutes is amended to read:

AB1038,61,24 861.21 (1) (a) "Governing instrument" has the meaning given in s. 854.01 (2).

AB1038, s. 204 Section 204. 861.21 (2) of the statutes is amended to read:

AB1038,62,8 861.21 (2) If marital Decedent's 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.

AB1038, s. 205 Section 205. 861.21 (3) of the statutes is repealed.

AB1038, s. 206 Section 206. 861.21 (4) of the statutes is amended to read:

AB1038,62,18 861.21 (4) Payment by surviving spouse. The court shall assign the interest in the home under sub. (2) to the surviving spouse upon payment of the value of the decedent's interest in the home that does not pass to the surviving spouse under intestacy or under the a 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.

AB1038, s. 207 Section 207. 861.21 (5) of the statutes is amended to read:

AB1038,63,2 861.21 (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 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.

AB1038, s. 208 Section 208. 861.31 (1c) of the statutes is repealed.

AB1038, s. 209 Section 209. 861.31 (1m) of the statutes is amended to read:

AB1038,63,11 861.31 (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 the court determines necessary or appropriate for the support of the surviving spouse and any dependent minor children of the decedent during the administration of the estate. In making or denying the order the 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.

AB1038, s. 210 Section 210. 861.31 (2) of the statutes is amended to read:

AB1038,63,18 861.31 (2) The court may order that an allowance may be made to the spouse for support of the spouse and any dependent minor children of the decedent, or that separate allowances may be made to the spouse and to the dependent minor children of the decedent or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse, the court may order that an allowance may be made to the dependent minor children of the decedent or to their guardian, if any.

AB1038, s. 211 Section 211. 861.31 (4) (intro.) of the statutes is amended to read:

AB1038,64,2 861.31 (4) (intro.) The court may direct order that the allowance be charged against income or principal, either as an advance or otherwise, but in no event may the court may not order that an allowance for support of dependent minor children of the decedent be charged against the income or principal interest of the surviving spouse. The court may direct order that the allowance for support of the surviving spouse, not including any allowance for support of dependent minor children of the decedent, be applied in satisfaction of any of the following:

AB1038, s. 212 Section 212. 861.31 (4) (a) of the statutes is amended to read:

AB1038,64,5 861.31 (4) (a) Any entitlement of the surviving spouse under s. 853.11 (2) 853.12.

AB1038, s. 213 Section 213. 861.33 (title) of the statutes is amended to read:

AB1038,64,7 861.33 (title) Selection of personalty by surviving spouse or children.

AB1038, s. 214 Section 214. 861.33 (1) (a) (intro.) of the statutes is amended to read:

AB1038,64,13 861.33 (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 then be transferred to the spouse or children by the personal representative:

AB1038, s. 215 Section 215. 861.33 (1) (b) of the statutes is amended to read:

AB1038,64,20 861.33 (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 that are specifically bequeathed are not classifiable as normal household furniture or furnishings.

AB1038, s. 216 Section 216. 861.33 (1) (c) of the statutes is repealed.

AB1038, s. 217 Section 217. 861.33 (2) of the statutes is amended to read:

AB1038,65,3 861.33 (2) If it appears that claims may not be paid in full, the court may, upon petition of any creditor, limit the transfer of personalty to the spouse or children under this section to items not exceeding $5,000 in aggregate inventory value until such time as the claims are paid in full or the court otherwise orders;, or the court may require the spouse or children to retransfer property in excess of $5,000 or, at the option of the spouse or children, pay the excess in value over this amount.

AB1038, s. 218 Section 218. 861.33 (3) of the statutes is amended to read:

AB1038,65,9 861.33 (3) The surviving spouse or children may select items not specifically bequeathed of the type specified under sub. (1) (a) 4. exceeding in value the $3,000 limit or obtain the transfer of items exceeding the limit set by the court under sub. (2), by paying to the personal representative the excess of inventory value over the respective limit.

AB1038, s. 219 Section 219. 861.33 (4) of the statutes is amended to read:

AB1038,65,16 861.33 (4) Subject to sub. (1) (c), the The personal representative has power, without court order, to execute appropriate documents to effect transfer of title to any personal property selected by the spouse or children selects under this section. A person may not question the validity of the documents of transfer or refuse to accomplish the transfer on the grounds that the personal representative is also the surviving spouse or the only child of the decedent.

AB1038, s. 220 Section 220. 861.35 (title) of the statutes is amended to read:

AB1038,65,19 861.35 (title) Special allowance for support of spouse and support and education of dependent minor children.