854.13(2)(d)
(d)
Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by a governing instrument or by the exercise of a power may not be made if partial disclaimer is expressly prohibited by the governing instrument or by the instrument exercising the power.
854.13(2)(e)
(e)
Spendthrift provision. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
854.13(2)(f)
(f)
Disclaimer by guardian or conservator. A guardian of the estate or a conservator appointed under
ch. 880 may disclaim on behalf of his or her ward, with court approval, if the ward is entitled to disclaim under this section.
854.13(2)(g)
(g)
Disclaimer by agent under power of attorney. An agent under a power of attorney may disclaim on behalf of the person who granted the power of attorney if all of the following apply:
854.13(2)(g)1.
1. The person who granted the power of attorney is entitled to disclaim under this section.
854.13(2)(g)2.
2. The power of attorney specifically grants the power to disclaim.
854.13(2)(h)
(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 would bar the right to disclaim under
sub. (11).
854.13(3)
(3) Instrument of disclaimer. The instrument of disclaimer shall do all of the following:
854.13(3)(b)
(b) Declare the disclaimer and the extent of the disclaimer.
854.13(3)(d)
(d) Be delivered within the time and in the manner provided under
subs. (4) and
(5).
854.13(4)(a)(a)
Present interest. An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the effective date of the transfer under the governing instrument. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.
854.13(4)(b)
(b)
Future interest. An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property is finally ascertained and his or her interest indefeasibly fixed. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.
854.13(4)(c)
(c)
Future right to income or profits. Notwithstanding
pars. (a) and
(b), an instrument disclaiming the future right to receive mandatory distributions of income or profits from any source may be executed and delivered at any time.
854.13(4)(d)
(d)
Persons under 21. Notwithstanding
pars. (a) and
(b), a person under 21 years of age may disclaim at any time not later than 9 months after the date on which the person attains 21 years of age.
854.13(4)(e)
(e)
Interests arising by disclaimer. Notwithstanding
pars. (a) and
(b), a person whose interest in property arises by disclaimer or by default of exercise of a power created by a governing instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date of death of the donee of the power.
854.13(5)
(5) Delivery and filing of disclaimer. 854.13(5)(a)(a)
Delivery. In addition to any requirements imposed by the governing instrument, the instrument of disclaimer is effective only if, within the time specified under
sub. (4), it is delivered to and received by any of the following:
854.13(5)(a)1.
1. The transferor of the property disclaimed, if living.
854.13(5)(a)2.
2. The personal representative or special administrator of the deceased transferor of the property.
854.13(5)(b)
(b)
Delivery to trustee. If the trustee of any trust to which the interest or power relates does not receive the instrument of disclaimer under
par. (a), a copy shall also be delivered to the trustee.
854.13(5)(c)
(c)
Filing. When delivery is made to the personal representative or special administrator of a deceased transferor, a copy of the instrument of disclaimer shall be filed in the probate court having jurisdiction.
854.13(5)(d)
(d)
Failure to deliver or file. Failure to deliver a copy of the instrument of disclaimer to the trustee under
par. (b) or to file a copy in the probate court under
par. (c), within the time specified under
sub. (4), does not affect the validity of any disclaimer.
854.13(5)(e)
(e)
Recording. If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.
854.13(6)
(6) Property not vested. The property disclaimed under this section shall be considered not to have been vested in, created in or transferred to the disclaimant.
854.13(7)(a)(a) Unless the transferor of the property or donee of the power has otherwise provided, 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 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).
854.13(7)(b)
(b) A disclaimer relates back for all purposes to the date of the decedent's death or the effective date of the transfer under the governing instrument. If the disclaimant is an appointee under a power exercised under a governing instrument, the disclaimer relates back to 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 disclaimer relates back to the last possible date for exercise of the power. A disclaimer of the future right to receive mandatory distributions of income or profits relates to the period stated in the disclaimer.
854.13(8)
(8) Devolution of disclaimed interest in joint tenancy. A disclaimed interest in a joint tenancy passes to the decedent's probate estate.
854.13(9)
(9) Devolution of disclaimed interest in survivorship marital property. A disclaimed interest in survivorship marital property passes to the decedent's probate estate.
854.13(10)
(10) Devolution of disclaimed future interest. Unless the instrument creating the future interest manifests a contrary intent either expressly or as construed from extrinsic evidence, a future interest limited to take effect in possession or enjoyment after the termination of the interest which is disclaimed takes effect as if the disclaimant had died before the effective date of the governing instrument or, if the disclaimant is an appointee under a power exercised by a governing instrument, as if the disclaimant had died before the effective date of the exercise of the power.
854.13(11)(a)(a)
Actions that bar disclaimer. A person's right to disclaim property is barred by any of the following:
854.13(11)(a)1.
1. The person's assignment, conveyance, encumbrance, pledge or transfer of the property or a contract therefor.
854.13(11)(a)3.
3. The person's acceptance of the property or benefit of the property.
854.13(11)(b)
(b)
Effect upon successors in interest. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him or her.
854.13(12)(a)(a) This section does not affect the right of a person to waive, release, disclaim or renounce property under any other statute, the common law, or as provided in the creating instrument.
854.13(12)(b)
(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.
854.13(13)
(13) Construction of effective date. In this section, the effective date of a transfer under a revocable governing instrument is the date on which the person with the power to revoke the transfer no longer has that power or the power to transfer the legal or equitable ownership of the property that is the subject of the transfer.
854.13 History
History: 1977 c. 309;
1983 a. 189 s.
329 (26);
1991 a. 39,
301;
1995 a. 360;
1997 a. 188 ss.
22 to
59,
175; Stats. 1997 s. 854.13.
854.13 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
854.13 Annotation
Unless barred by statute, a debtor can disclaim bequest, thus defeating a creditor's action under 813.026. Estate of Goldhammer v. Goldhammer,
138 Wis. 2d 77,
405 N.W.2d 693 (Ct. App. 1987).
854.13 Annotation
Except for a tax-related "qualified disclaimer", the 9-month time limit for disclaimer of a future interest commences on the death of the life tenant. Estate of Balson,
183 Wis. 2d 31,
515 N.W.2d 474 (Ct. App. 1994).
854.13 Note
NOTE: The preceding cases were decided prior to the adoption of
1997 Wis. Act 188, which made extensive revisons to s. 853.40 and resulted in the creation of s. 854.06.
854.14
854.14
Beneficiary who kills decedent. 854.14(1)
(1)
Definition. In this section, "disposition of property" means a transfer, including by appointment, of property or any other benefit to a beneficiary designated in a governing instrument or under a statute.
854.14(2)
(2) Revocation of benefits. Except as provided in
sub. (6), the unlawful and intentional killing of the decedent does all of the following:
854.14(2)(a)
(a) Revokes a provision in a governing instrument that, by reason of the decedent's death, does any of the following:
854.14(2)(a)3.
3. Nominates or appoints the killer to serve in any fiduciary or representative capacity, including personal representative, executor, trustee or agent.
854.14(2)(b)
(b) Severs the interests of the decedent and killer in property held by them as joint tenants with the right of survivorship or as survivorship marital property and transforms the interests of the decedent and the killer into tenancies in common or marital property, whichever is appropriate.
854.14(2)(c)
(c) Revokes every statutory right or benefit to which the killer may have been entitled by reason of the decedent's death.
854.14(3)
(3) Effect of revocation. Except as provided in
sub. (6), provisions of a governing instrument that are revoked by this section are given effect as if the killer disclaimed all revoked provisions or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. Except as provided in
sub. (6), the killer's share of the decedent's intestate estate, if any, passes as if the killer had disclaimed his or her intestate share under
s. 854.13.
854.14(4)
(4) Wrongful acquisition of property. Except as provided in
sub. (6), a wrongful acquisition of property by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrongdoing.
854.14(5)
(5) Unlawful and intentional killing; how determined. 854.14(5)(a)(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).
854.14(5)(b)
(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).
854.14(5)(c)
(c) In the absence of a judgment establishing criminal accountability or an adjudication of delinquency, the court, upon the petition of an interested person, shall determine whether, under the preponderance of evidence standard, the killing was unlawful and intentional for purposes of this section and
s. 861.02 (8).
854.14(6)
(6) Exceptions. This section does not apply if any of the following applies:
854.14(6)(a)
(a) The court finds that, under the factual situation created by the killing, the decedent's wishes would best be carried out by means of another disposition of the property.
854.14(6)(b)
(b) The decedent provided in his or her will, by specific reference to this section, that this section does not apply.
854.14 History
History: 1997 a. 188.
854.15
854.15
Revocation of provisions in favor of former spouse. 854.15(1)(a)
(a) "Disposition of property" means a transfer, including by appointment, of property or any other benefit to a beneficiary designated in a governing instrument.
854.15(1)(b)
(b) "Divorce, annulment or similar event" means any divorce, any annulment or any other event or proceeding that would exclude a spouse as a surviving spouse under
s. 851.30.
854.15(1)(c)
(c) "Former spouse" means a person whose marriage to the decedent has been the subject of a divorce, annulment or similar event.
854.15(1)(d)
(d) "Relative of the former spouse" means an individual who is related to the former spouse by blood, adoption or marriage and who, after the divorce, annulment or similar event, is not related to the decedent by blood, adoption or marriage.
854.15(1)(e)
(e) "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, 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, whether or not the decedent was then empowered to designate himself or herself in place of the former spouse or the former spouse's relative, and whether or not the decedent then had the capacity to exercise the power.
854.15(2)
(2) Scope. This section applies only to governing instruments that were executed by the decedent before the occurrence of a divorce, annulment or similar event with respect to his or her marriage to the former spouse.
854.15(3)
(3) Revocation upon divorce. Except as provided in
subs. (5) and
(6), a divorce, annulment or similar event does all of the following:
854.15(3)(a)
(a) Revokes any revocable disposition of property made by the decedent to the former spouse or a relative of the former spouse in a governing instrument.
854.15(3)(b)
(b) Revokes any disposition created by law to the former spouse or a relative of the former spouse.
854.15(3)(c)
(c) Revokes any revocable provision made by the decedent in a governing instrument conferring a power of appointment on the former spouse or a relative of the former spouse.
854.15(3)(d)
(d) Revokes the decedent's revocable nomination of the former spouse or a relative of the former spouse to serve in any fiduciary or representative capacity.
854.15(3)(e)
(e) Severs the interests of the decedent and former spouse in property held by them as joint tenants with the right of survivorship or as survivorship marital property and transforms the interests of the decedent and former spouse into tenancies in common.
854.15(4)
(4) Effect of revocation. Except as provided in
subs. (5) and
(6), provisions of a governing instrument that are revoked by this section are given effect as if the former spouse and relatives of the former spouse disclaimed the revoked provisions or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce, annulment or similar event.
854.15(5)
(5) Exceptions. This section does not apply if any of the following applies:
854.15(5)(a)
(a) The express terms of a governing instrument provide otherwise.
854.15(5)(b)
(b) The express terms of a court order provide otherwise.
854.15(5)(c)
(c) The express terms of a contract relating to the division of the decedent's and former spouse's property made between the decedent and the former spouse before or after the marriage or the divorce, annulment or similar event provide otherwise.
854.15(5)(d)
(d) The divorce, annulment or similar event is nullified.
854.15(5)(e)
(e) The decedent and the former spouse have remarried.
