861.41 Exemption of property to be assigned to surviving spouse.
INTEREST IN MARITAL PROPERTY
Subch. I of ch. 861 Cross-reference
Cross-reference: See definitions in ch.
851.
Subch. I of ch. 861 Note
NOTE: 1985 Wis. Act 37, which created ss. 861.03 to 861.13, contains explanatory notes. These notes also may be found in legislative council information memorandum 85-7, part I.
861.01
861.01
Ownership of marital property at death. 861.01(1)(1)
Surviving spouse's one-half interest in marital property. Upon the death of either spouse, the surviving spouse retains his or her undivided one-half interest in each item of marital property. The surviving spouse's undivided one-half interest in each item of marital property is not subject to administration. Ownership and management and control rights are set forth under
ss. 857.01 and
857.015.
861.01(2)
(2) Interest of a 3rd party in marital property. A 3rd party who is a successor in interest to all or part of the decedent's 50% interest in marital property is a tenant in common with the surviving spouse.
861.01(3)
(3) 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 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.
861.01 Annotation
New probate and non-probate property elections under Wisconsin's marital property act. Erlanger and Weisberger. WBB Oct. and Nov. 1986.
861.015
861.015
Satisfaction of nonholding spouse's marital property interest in certain business property. 861.015(1)
(1) If following the death of a spouse property is subject to a directive under
s. 857.015, the marital property interest of the nonholding spouse in the property shall be satisfied within one year after the decedent spouse's death from other property which is of equal clear market value at the time of satisfaction. Except as provided under
sub. (3), if the interests of the nonholding spouse under this section and
s. 861.02 (2) are not satisfied within one year after the decedent spouse's death, this section does not apply and the nonholding spouse's marital property interest in the property subject to the directive continues as if the directive had not been made.
861.015(2)
(2) For purposes of this section, property subject to a directive is valued by its clear market value on the date of the decedent's death. Satisfaction of the nonholding spouse's marital property interest in the property subject to the directive shall be based on that value, plus any income from the property subject to the directive after the death of the decedent and before satisfaction. For purposes of determining the income from the property subject to a directive, such property shall be treated as a legacy or devise of property other than money under
s. 701.20 (5) (b) 1.
861.015(3)
(3) If the interests of the nonholding spouse under this section and
s. 861.02 (2) are not satisfied within one year after the decedent spouse's death because the clear market value of the property subject to the directive has not been determined, the court having jurisdiction of the decedent spouse's estate shall:
861.015(3)(a)
(a) Order that the interests of the nonholding spouse shall be satisfied after the determination of clear market value, at a date specified by the court; or
861.015(3)(b)
(b) Order that the interests of the nonholding spouse shall be satisfied before the determination of clear market value based on an estimate of the clear market value, subject to any necessary adjustment upon final determination of clear market value.
861.015(4)
(4) The following property is not available to satisfy the nonholding spouse's marital property interest in the property subject to the directive:
861.015(4)(a)
(a) Property included in an order, or extension or revision of an order, for an allowance under
s. 861.31 made before satisfaction of the nonholding spouse's interest.
861.015(4)(b)
(b) Property selected under
s. 861.33 before satisfaction of the nonholding spouse's interest.
861.015(4)(c)
(c) Property included in an order for an allowance under
s. 861.35 made before satisfaction of the nonholding spouse's interest.
861.015(5)
(5) Satisfaction of a nonholding spouse's marital property interest under this section shall not adversely affect any of the following:
861.015(5)(a)
(a) The nonholding spouse's marital property interest in property not subject to the directive.
861.015(5)(b)
(b) The nonholding spouse's election under
s. 861.02 of deferred marital property other than deferred marital property subject to the directive.
861.015 History
History: 1987 a. 393.
861.02
861.02
Election of deferred marital property. 861.02(1)
(1) In addition to the right to elect under
s. 861.03 and unless barred under
s. 861.13, at the death of a spouse whose domicile is in this state the surviving spouse may elect, under
s. 861.11, not more than a one-half interest in any or all items of the deferred marital property then owned by the decedent spouse which is subject to administration, reduced by any of that elected property which is used to satisfy obligations for which the property is available under
s. 859.18. The election under this section does not apply to deferred marital property that passes under
s. 852.01 (1) (a) or
(b). Property elected by a surviving spouse under this subsection, except to the extent that no other property is available to satisfy the obligation, is not subject to claims for the decedent's funeral expenses, to federal death taxes against the decedent's estate or to taxes imposed under subch.
III of ch. 72, 1989 stats., against the decedent's estate. Failure of a surviving spouse to elect under this subsection is not a transfer of property and does not result in a gift from the surviving spouse to the decedent spouse's estate or any beneficiary of the estate.
861.02(1m)
(1m) For purposes of the election under
sub. (1), deferred marital property then owned by the decedent spouse which is subject to administration includes real property located in another state and owned by the decedent spouse at his or her death which:
861.02(1m)(a)
(a) Would be classified as deferred marital property, if located in this state; and
861.02(1m)(b)
(b) Would be subject to administration, if located in this state.
861.02(2)(a)(a) If the deferred marital property subject to administration includes property which is subject to a directive under
s. 857.015, an election under
sub. (1) against such property shall be satisfied within one year after the decedent spouse's death from other property which is of equal clear market value at the time of satisfaction. Except as provided in
par. (c), if the interests of the surviving spouse under this subsection and
s. 861.015 are not satisfied within one year after the decedent spouse's death, this subsection does not apply and the surviving spouse's election against the property subject to the directive shall be satisfied as if the directive had not been made.
861.02(2)(b)
(b) For purposes of this subsection, property subject to a directive is valued by its clear market value on the date of the decedent's death. Satisfaction of the nonholding spouse's election against the property subject to a directive shall be based on that value, plus any income from the property subject to the directive after the death of the decedent and before satisfaction. For purposes of determining the income from the property subject to a directive, such property shall be treated as a legacy or devise of property other than money under
s. 701.20 (5) (b) 1.
861.02(2)(c)
(c) If the interests of the nonholding spouse under this subsection and
s. 861.015 are not satisfied within one year after the decedent spouse's death because the clear market value of the property subject to the directive has not been determined, the court having jurisdiction of the decedent spouse's estate shall:
861.02(2)(c)1.
1. Order that the interests of the nonholding spouse shall be satisfied after the determination of clear market value, at a date specified by the court; or
861.02(2)(c)2.
2. Order that the interests of the nonholding spouse shall be satisfied before the determination of clear market value based on an estimate of the clear market value, subject to any necessary adjustment upon final determination of clear market value.
861.02(2)(d)
(d) The following property is not available to satisfy the election against the property subject to the directive:
861.02(2)(d)1.
1. Property included in an order, or extension or revision of an order, for an allowance under
s. 861.31 made before satisfaction of the nonholding spouse's interest.
861.02(2)(d)2.
2. Property selected under
s. 861.33 before satisfaction of the nonholding spouse's interest.
861.02(2)(d)3.
3. Property included in an order for an allowance under
s. 861.35 made before satisfaction of the nonholding spouse's interest.
861.02(2)(e)
(e) Satisfaction of a surviving spouse's interests under this subsection shall not adversely affect any of the following:
861.02(2)(e)1.
1. The surviving spouse's marital property interest in property not subject to the directive.
861.02(2)(e)2.
2. The surviving spouse's election under
sub. (1) of property other than property subject to the directive.
861.02 History
History: 1983 a. 186;
1985 a. 37 ss.
144,
145; Stats. 1985 s. 861.02;
1987 a. 393;
1991 a. 224,
301,
315;
1993 a. 213.
861.02 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
861.02 Annotation
Deferred marital property under (1) is property subject to administration for all purposes including payment of claims under 879.63. In Matter of Estate of Moccero, 168 W (2d) 313, 483 NW (2d) 310 (Ct. App. 1992).
861.03
861.03
Election of augmented marital property estate. In addition to the right to elect under
s. 861.02 (1), at the death of a spouse whose domicile is in this state the surviving spouse may, under
s. 861.11, elect not more than one-half of the augmented marital property estate. The augmented marital property estate consists of the value of property described under
s. 861.05. The amount elected is subject to reduction as provided under
s. 861.07. The amount elected shall be satisfied and apportioned as provided under
s. 861.09.
861.03 History
History: 1985 a. 37;
1987 a. 393.
861.05
861.05
Transfers included in augmented marital property estate. 861.05(1)(b)
(b) "Property transferred by the decedent spouse" includes contracts or other arrangements under which the property is payable to a person other than the surviving spouse or the decedent spouse's estate at the death of the decedent spouse.
861.05(2)
(2) For the purpose of determining the augmented marital property estate under
s. 861.03, a surviving spouse may include the value of the decedent spouse's deferred marital property transferred by the decedent spouse without the consent of the surviving spouse to a person other than the surviving spouse or the decedent spouse's estate and other than a bona fide purchaser if any of the following applies:
861.05(2)(a)
(a) The decedent retained at the time of death the possession or enjoyment of or the right to income from the property.
861.05(2)(b)
(b) The decedent retained at the time of death a power alone or in conjunction with another person to amend, revoke or terminate the transfer or to consume, invade or dispose of the principal for the decedent's benefit.
861.05(2)(c)
(c) The decedent held the property at the time of death with a person other than the surviving spouse with the right of survivorship.
861.05(2)(d)
(d) The decedent retained at the time of death the right to make the property payable to a person other than the surviving spouse, including the right to designate a person other than the surviving spouse as the beneficiary of any life insurance, accident insurance, joint annuity, pension or similar arrangement.
861.05(3)(a)(a) Property is valued under this section as of the decedent's death. The value of property is included in this section only to the extent that the decedent did not receive adequate consideration for the transfer.
861.05(3)(b)
(b) The surviving spouse's beneficial interest in a trust, life estate, insurance policy, retirement plan, annuity or other arrangement described in this section is valued as follows:
861.05(3)(b)1.
1. A mandatory income interest is valued in accordance with valuation tables used by the internal revenue service for estate tax purposes.
861.05(3)(b)2.
2. A mandatory income interest together with a general testamentary power of appointment is valued at 100% of the trust.
861.05(3)(b)3.
3. A lifetime unlimited power of withdrawal is valued at 100% of the property subject to the power.
861.05(3)(b)4.
4. A discretionary or any other beneficial interest or power is valued at zero.
861.05(4)
(4) This section only applies to transfers on or after April 4, 1984, for which the instrument necessary to effect the transfer was executed by the decedent spouse on or after April 4, 1984, or transfers for which the instrument necessary to effect the transfer was executed by the decedent spouse before April 4, 1984, and the dispositive provisions were materially changed on or after April 4, 1984.
861.05 History
History: 1985 a. 37;
1991 a. 301.
861.05 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
861.07
861.07
Property of surviving spouse charged against elective share of augmented marital property estate. 861.07(1)(a)
(a) "Property derived or received from the decedent" includes but is not limited to the following:
861.07(1)(a)1.
1. Property held at the time of the decedent's death by the decedent and the surviving spouse with the right of survivorship.
861.07(1)(a)2.
2. Property appointed to or for the spouse by the decedent's exercise of a general or special power of appointment.
861.07(1)(b)
(b) "Property derived or received from the decedent" does not include property acquired by the surviving spouse under
s. 861.02 (1).
861.07(2)
(2) If there is an election of the augmented marital property estate by the surviving spouse under
s. 861.03, the share elected shall be reduced by the value of the following property:
861.07(2)(a)
(a) Property of the decedent spouse transferred to or for the surviving spouse by will or under intestate succession.
861.07(2)(am)
(am) Property transferred to or for the surviving spouse at or because of the decedent's death, to the extent that the property was derived or received from the decedent by means other than testate or intestate succession without adequate consideration.
861.07(2)(b)
(b) Property owned by the surviving spouse at the decedent's death, to the extent that the property was derived or received from the decedent without adequate consideration.
861.07(2)(c)
(c) Property transferred by the surviving spouse to any person other than the decedent at any time during marriage, to the extent that the property was derived or received from the decedent without adequate consideration and to the extent that the property was transferred without the receipt of adequate consideration.
861.07(2m)
(2m) The amount of the reduction under
sub. (2) shall be decreased by one-half the value of the property included in the reduction which is deferred marital property or which would have been deferred marital property if retained by the decedent, except property described in
sub. (2r).
861.07(2r)
(2r) If property described under this section is a joint tenancy exclusively between spouses which is governed by
ch. 700, one-half of the joint tenancy transfers to the donee spouse at the death of the decedent spouse and shall be valued as of that date.
861.07(3)
(3) Property described under this section which is owned by the surviving spouse at the decedent's death, which is transferred to the surviving spouse at or because of the decedent's death or which is transferred to the surviving spouse by will or intestate succession is valued as of the date of the decedent's death. Property described under this section which has been transferred by the surviving spouse is valued at the time the transfer became irrevocable or at the decedent's death, whichever occurs first. The surviving spouse's beneficial interest in a trust, life estate, insurance policy, retirement plan, annuity or other arrangement described in this section is valued as follows:
861.07(3)(a)
(a) A mandatory income interest is valued in accordance with valuation tables used by the internal revenue service for estate tax purposes.
861.07(3)(b)
(b) A mandatory income interest together with a general testamentary power of appointment is valued at 100% of the trust.
861.07(3)(c)
(c) A lifetime unlimited power of withdrawal is valued at 100% of the property subject to the power.
861.07(3)(d)
(d) A discretionary or any other beneficial interest or power is valued at zero.
861.07(4)
(4) For the purpose of this section, the surviving spouse has the burden of proving that property owned by him or her at the decedent's death or property transferred by him or her during the marriage was not derived or received from the decedent.
861.09
861.09
Satisfaction and apportionment of augmented marital property estate.
