766.001 Annotation
A brief overview: The new Wisconsin marital property act. Weisberger and Wilcox. WBB July, 1984.
766.001 Annotation
The marital property law. WBB July, 1984.
766.001 Annotation
The trailer bill: A survey of the 1985 amendments to the Wisconsin marital property act. Furrh, WBB December, 1985.
766.001 Annotation
Estate planning under Wisconsin's marital property act. Erlanger, Hughes and Weisberger, WBB February, 1986.
766.01
766.01
Definitions. In this chapter:
766.01(1)
(1) "Acquiring" property includes reducing indebtedness on encumbered property and obtaining a lien on or security interest in property.
766.01(2)
(2) "Appreciation" means a realized or unrealized increase in the value of property.
766.01(2m)(a)(a) Except as provided in
pars. (b) and
(c), "credit" means the right granted by a creditor to defer payment of a debt, incur debt and defer its payment or purchase property or services and defer payment for the property or services.
766.01(2r)(a)(a) Except as provided in
pars. (b) and
(c), "creditor" means a person that regularly extends credit.
766.01(3)
(3) "Decree" means a judgment or other order of a court.
766.01(3m)
(3m) "Deferred employment benefit" means a benefit from a deferred employment benefit plan.
766.01(4)(a)(a) "Deferred employment benefit plan" means a plan, fund, program or other arrangement under which compensation or benefits from employment are expressly, or as a result of surrounding circumstances, deferred to a later date or the happening of a future event. "Deferred employment benefit plan" includes but is not limited to a pension, profit sharing or stock-bonus plan, an employee stock-ownership or stock-purchase plan, a savings or thrift plan, an annuity plan, a qualified bond-purchase plan, a self-employed retirement plan, a simplified employee pension and a deferred compensation agreement or plan.
766.01(4)(b)
(b) "Deferred employment benefit plan" does not include life, health, accident or other insurance or a plan, fund, program or other arrangement providing benefits similar to insurance benefits, except to the extent that benefits under the plan:
766.01(4)(b)1.
1. Have a present value that is immediately realizable in cash at the option of the employee;
766.01(4)(b)3.
3. Represent a right to compensation for loss of income during disability; or
766.01(4)(b)4.
4. Represent a right to payment of expenses incurred before time of valuation.
766.01(5)
(5) "Determination date" means the last to occur of the following:
766.01(5)(b)
(b) 12:01 a.m. on the date that both spouses are domiciled in this state.
766.01(6)
(6) "Disposition at death" means transfer of property by will, intestate succession, nontestamentary transfer or other means that takes effect at the transferor's death.
766.01(7)
(7) "Dissolution" means termination of a marriage by a decree of dissolution, divorce, annulment or declaration of invalidity or entry of a decree of legal separation or separate maintenance. The term does not include a decree resulting from an action available under
ch. 767 which is not an annulment, a divorce or a legal separation.
766.01(8)
(8) "During marriage" means a period in which both spouses are domiciled in this state that begins at the determination date and ends at dissolution or at the death of a spouse.
766.01(9)(a)(a) Except as provided in
pars. (b) to
(d), property is "held" by a person only if a document of title to the property is registered, recorded or filed in a public office in the name of the person or a writing that customarily operates as a document of title to the type of property is issued for the property in the person's name.
766.01(9)(b)
(b) An account is "held" by the person who, by the terms of the account, has a present right, subject to request, to payment from the account other than as an agent. Accounts that are so "held" include accounts under
s. 705.01 (1) and brokerage accounts.
766.01(9)(c)
(c) An uncertificated security, as defined under
s. 408.102 (1) (r), is "held" by the person identified as the registered owner of the security upon books maintained for that purpose by or on behalf of the issuer. If the registered owner of an uncertificated security is identified as a brokerage account, the security is "held" as provided under
par. (b).
766.01(9)(d)
(d) The property rights, as specified and described in
ss. 178.21 and
178.22, of a partner in a general partnership are "held" by the partner.
766.01(10)
(10) "Income" means wages, salaries, commissions, bonuses, gratuities, payments in kind, deferred employment benefits, proceeds, other than death benefits, of any health, accident or disability insurance policy or of any plan, fund, program or other arrangement providing benefits similar to those forms of insurance, other economic benefits having value attributable to the effort of a spouse, dividends, dividends on life insurance and annuity contracts to the extent that the aggregate of the dividends exceeds the aggregate premiums paid, interest, income distributed from trusts and estates, and net rents and other net returns attributable to investment, rental, licensing or other use of property, unless attributable to a return of capital or to appreciation.
766.01(11)
(11) "Management and control" means the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, institute or defend a civil action regarding or otherwise deal with property as if it were property of an unmarried person.
766.01(13)
(13) A person has "notice" of a fact if the person has knowledge of it, receives a notification of it, or has reason to know that it exists from the facts and circumstances known to the person.
766.01(15)
(15) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property.
766.01(16)
(16) "Written consent" means a document signed by a person against whose interests it is sought to be enforced.
766.01 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
766.01 Annotation
From Common Law Property to Community Property: Wisconsin's Marital Property Act Four Years Later. Erlanger and Weisberger. 1990 WLR 769.
766.03(2)
(2) After this chapter first applies to spouses, it continues to apply to spouses during marriage.
Section 766.75 applies after a dissolution. If at the time of the death of a spouse both spouses are domiciled in this state, the provisions of this chapter which have application after the death of a spouse apply.
766.03(3)
(3) The cessation of the application of this chapter because a spouse is no longer domiciled in this state does not by itself affect any property, right, interest or remedy acquired under this chapter by either spouse or by a 3rd party or the satisfaction of any obligation incurred by a spouse under this chapter.
766.03(4)
(4) Section 766.97 applies to a spouse in this state whether or not that person is domiciled in this state.
766.03(5)
(5) Any property, right, interest or remedy of a spouse or 3rd party acquired or property that is available to satisfy an obligation incurred on or after January 1, 1986, and before May 3, 1988, shall not be adversely affected by
1987 Wisconsin Act 393, sections 10,
11,
15,
16,
27,
29 and
32.
766.03(6)
(6) This chapter does not affect the property available to satisfy an obligation incurred by a spouse that is attributable to an obligation arising when one or both spouses are not domiciled in this state or to an act or omission occurring when one or both spouses are not domiciled in this state.
766.03 History
History: 1987 a. 393;
1991 a. 301.
766.03 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
766.15
766.15
Responsibility between spouses. 766.15(1)
(1) Each spouse shall act in good faith with respect to the other spouse in matters involving marital property or other property of the other spouse. This obligation may not be varied by a marital property agreement.
766.15(2)
(2) Management and control by a spouse of that spouse's property that is not marital property in a manner that limits, diminishes or fails to produce income from that property does not violate
sub. (1).
766.15 History
History: 1983 a. 186.
766.15 Annotation
Intentional misrepresentation is a breach of the duty of good faith for which the exclusive pre-divorce remedy is s. 766.70 (1). Gardner v. Gardner,
175 Wis. 2d 420,
499 N.W.2d 266 (Ct. App. 1993).
766.17
766.17
Variation by marital property agreement. 766.17(2)
(2) Section 859.18 (6) governs the effect of a marital property agreement upon property available for satisfaction of obligations after the death of a spouse.
766.17 History
History: 1983 a. 186;
1985 a. 37.
766.31
766.31
Classification of property of spouses. 766.31(1)
(1) All property of spouses is marital property except that which is classified otherwise by this chapter and that which is described in
sub. (8).
766.31(2)
(2) All property of spouses is presumed to be marital property.
766.31(3)
(3) Each spouse has a present undivided one-half interest in each item of marital property, but the marital property interest of the nonemployee spouse in a deferred employment benefit plan or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan terminates at the death of the nonemployee spouse if he or she predeceases the employee spouse.
766.31(4)
(4) Except as provided under
subs. (7) (a),
(7p) and
(10), income earned or accrued by a spouse or attributable to property of a spouse during marriage and after the determination date is marital property.
766.31(5)
(5) The transfer of property to a trust does not by itself change the classification of the property.
766.31(6)
(6) Property owned at a marriage which occurs after 12:01 a.m. on January 1, 1986, is individual property of the owning spouse if, at the marriage, both spouses are domiciled in this state.
766.31(7)
(7) Property acquired by a spouse during marriage and after the determination date is individual property if acquired by any of the following means:
766.31(7)(a)
(a) By gift during lifetime or by a disposition at death by a 3rd person to that spouse and not to both spouses. A distribution of principal or income from a trust created by a 3rd person to one spouse is the individual property of that spouse unless the trust provides otherwise.
766.31(7)(b)
(b) In exchange for or with the proceeds of other individual property of the spouse.
766.31(7)(c)
(c) From appreciation of the spouse's individual property except to the extent that the appreciation is classified as marital property under
s. 766.63.
766.31(7)(d)
(d) By a decree, marital property agreement or reclassification under
sub. (10) designating it as the individual property of the spouse.
766.31(7)(e)
(e) As a recovery for damage to property under
s. 766.70, except as specifically provided otherwise in a decree or marital property agreement.
766.31(7)(f)
(f) As a recovery for personal injury except for the amount of that recovery attributable to expenses paid or otherwise satisfied from marital property and except for the amount attributable to loss of income during marriage.
766.31(7p)
(7p) Income attributable to all or specified property other than marital property, with respect to which a spouse has executed under
s. 766.59 a statement unilaterally designating that income as his or her individual property, is individual property.
766.31(8)
(8) Except as provided otherwise in this chapter, the enactment of this chapter does not alter the classification and ownership rights of property acquired before the determination date or the classification and ownership rights of property acquired after the determination date in exchange for or with the proceeds of property acquired before the determination date.
766.31(9)
(9) Except as provided otherwise in this chapter and except to the extent that it would affect the spouse's ownership rights in the property existing before the determination date, during marriage the interest of a spouse in property owned immediately before the determination date is treated as if it were individual property.
766.31(10)
(10) Spouses may reclassify their property by gift, conveyance, as defined in
s. 706.01 (4), signed by both spouses, marital property agreement, written consent under
s. 766.61 (3) (e) or unilateral statement under
s. 766.59 and, if the property is a security, as defined in
s. 705.21 (11), by an instrument, signed by both spouses, which conveys an interest in the security. If a spouse gives property to the other spouse and intends at the time the gift is made that the property be the individual property of the donee spouse, the income from the property is the individual property of the donee spouse unless a contrary intent of the donor spouse regarding the classification of income is established.
766.31 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
766.31 Annotation
Marital property presumptions and tracing principals are applied. In Matter of Estate of Lloyd,
170 Wis. 2d 240,
487 N.W.2d 644 (Ct. App. 1992).
766.31 Annotation
The marital property law does not reduce a non-negligent mother's wrongful death recovery for the father's contributory negligence in their child's death. Smith v. State Farm Fire & Casualty Co.
192 Wis. 2d 322,
531 N.W.2d 376 (Ct. App. 1995).
766.31 Annotation
A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank,
204 Wis. 2d 426,
555 N.W.2d 655 (Ct. App. 1996).
766.31 Annotation
The termination under sub. (3) of a marital property interest in pension benefits did not prevent the application of the equitable principle that a murderer should not be permitted to profit from the crime. The trial court acted properly in imposing a constructive on the decedent's marital property interest in the murderer's pension benefits. Estate of Hackl v. Hackl,
231 Wis. 2d 43,
605 N.W.2d 579 (Ct. App. 1999).
766.31 Annotation
Irreconcilable differences: Income from separate property under divorce law and under Wisconsin's marital property act. Bascom. 70 MLR 41 (1986).
766.31 Annotation
The effects of the Wisconsin marital property act on trusts: Whose property is it? Kusky, WBB March, 1985.
