852.01 Annotation
Disposition of estate of decedent killed by beneficiary discussed. In Matter of Estate of Safran, 102 W (2d) 79, 306 NW (2d) 27 (1981).
852.01 Annotation
A conviction for reckless homicide of the decedent does not automatically prevent the killer from inheriting, but requires an evidentiary hearing under sub. (2m) (br) to determine intent. Matter of Estate of Jackson, 186 W (2d) 439, 521 NW (2d) 173 (Ct. App. 1994).
852.03(1)(1)
Meaning of representation. When representation is called for by
s. 852.01 (1) (b),
(d) or
(e), succession is accomplished as follows: the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among the deceased person's issue in the same manner until each part passes to a surviving heir.
852.03(2)
(2) Computing degrees of kinship. The degree of kinship is computed according to the rules of the civil law, as follows: [See Figure 852.03 (2) following]
852.03(3)
(3) Relatives of the half blood. Relatives of the half blood take the same share as if they had been of the whole blood.
852.03(4)
(4) Posthumous heirs. A person may be an heir under
s. 852.01 even though born after the death of the decedent if that person was conceived before decedent's death.
852.03 History
History: 1993 a. 486.
852.05
852.05
Status of nonmarital child for purposes of intestate succession. 852.05(1)
(1) A nonmarital child or the child's issue is entitled to take in the same manner as a marital child by intestate succession from and through his or her mother, and from and through his or her father if the father has either been adjudicated to be the father in a paternity proceeding under
ch. 767, or has admitted in open court that he is the father, or has acknowledged himself to be the father in writing signed by him.
852.05(2)
(2) Property of a nonmarital child passes in accordance with
s. 852.01 except that the father or the father's kindred can inherit only if the father has been adjudicated to be the father in a paternity proceeding under
ch. 767.
852.05(3)
(3) This section does not apply to a child who becomes a marital child by the subsequent marriage of the child's parents under
s. 767.60. The status of a nonmarital child who is legally adopted is governed by
s. 851.51.
852.05 Annotation
Although paternity proceeding may not be maintained posthumously, (1) does not deny equal protection or due process to posthumous illegitimates. In re Estate of Blumreich, 84 W (2d) 545, 267 NW (2d) 870 (1978).
852.05 Annotation
Court properly looked to extrinsic evidence to determine whether signed letter constituted reasonably clear and certain acknowledgment of paternity. C. R. v. American Standard Ins. Co. 113 W (2d) 12, 334 NW (2d) 121 (Ct. App. 1983).
852.05 Annotation
One claiming to be nonmarital child and seeking benefit under (1) must first prove such status and overcome any presumption of paternity in effect. In Matter of Estate of Schneider, 150 W (2d) 286, 441 NW (2d) 335 (Ct. App. 1989).
852.05 Annotation
New York law requiring judicial finding of paternity during father's lifetime in order for illegitimate child to inherit from intestate father did not deny equal protection. Lalli v. Lalli, 439 US 259 (1978).
852.05 Annotation
This statute relating to heirship of illegitimates in effect at death of intestate unallotted member of Indian tribe governed illegitimate's claim to share of deceased estate. Eskra v. Morton, 380 F Supp. 205.
852.09
852.09
Assignment of home as part of share of surviving spouse. 852.09(1)(1) If the intestate estate includes an interest in a home, the interest of the decedent is assigned to the surviving spouse as part of his or her share under
s. 852.01 unless the surviving spouse files with the court at or before the hearing on the final account a written request that the home not be so assigned. The interest of the decedent in the home is valued with all liens deducted. Inventory value is prima facie the value of the interest in the home. If the value exceeds the share of the surviving spouse under
s. 852.01, the court may either (a) assign the interest in the home to the surviving spouse subject to a lien in favor of the other heirs for their respective interests in the excess, or (b) assign the interest in the home to the surviving spouse upon payment by the latter to the personal representative of the amount by which the value of the interest exceeds the spouse's share.
852.09(2)
(2) Home means any dwelling in the estate of the decedent which 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 selected by the surviving spouse. It includes but is not limited to any of the following: a house, a mobile home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse, or a building used in part for a dwelling and in part for commercial or business purposes. The home includes all of the surrounding land, unless the court in its discretion sets off part of the land as severable from the remaining 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 so much of the land as is necessary for a dwelling. In determining whether to allow a division of the land and 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. The court shall deny a petition for division unless division is clearly appropriate under the circumstances and can be made without prejudice to the rights of all persons interested in the estate.
852.09 History
History: 1993 a. 486.
852.11
852.11
Advancement in intestate estate. 852.11(1)
(1)
When gift is an advance. A gift by the decedent during the decedent's lifetime to an heir is an advance against the heir's intestate share to be taken into account by the court in the final judgment only if:
852.11(1)(a)
(a) There is a writing by the decedent clearly stating that the gift is an advance whether or not such writing is contemporaneous with the gift; or
852.11(1)(b)
(b) The heir states by writing or in court that the gift was an advance.
852.11(2)
(2) Death of advancee before decedent. If a gift is made during lifetime to a prospective heir and such gift would have been an advance under
sub. (1) but for the death of the prospective heir prior to the decedent or within the time limited by
s. 852.01 (2), the amount of the advance shall be taken into account in computing the shares of the issue of the prospective heir to whom the gift was made, whether or not the issue take by representation.
852.11(3)
(3) Valuation. If any gift is an advance, its value shall be determined as of the time when the heir comes into possession or enjoyment of the property advanced, or the time of death of the decedent if that occurs first.
852.11 History
History: 1993 a. 486.
852.13
852.13
Right to disclaim intestate share. Any person to whom property would otherwise pass under
s. 852.01 may disclaim all or part of the property as provided under
s. 853.40.
852.13 History
History: 1973 c. 233;
1977 c. 309.
