861.11(4)(d)
(d) If payments have been made to the court or if property has been deposited with the court under
par. (a), the court may order that all or part of the payments or property be paid to the beneficiary who is designated in the governing instrument, upon that beneficiary's petition to the court. Those payments shall be in an amount and subject to conditions consistent with this subchapter.
861.11(5)
(5) Protection of financial institutions. 861.11(5)(b)
(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.
861.11(5)(c)
(c) If a financial institution has reason to believe that a dispute exists as to the rights of parties, or their successors, to an account subject to a governing instrument, the financial institution may, but is not required to, do any of the following:
861.11(5)(d)
(d) The protection afforded a financial institution under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of accounts.
OTHER RIGHTS,
ALLOWANCES AND EXEMPTIONS
861.17
861.17
Rights in property transferred in fraud of surviving spouse. 861.17(1)(1) Nothing in this chapter precludes a court in an equitable proceeding from subjecting to the rights of the surviving spouse under
ch. 852 and this chapter any property arrangement made by the decedent in fraud of those rights. A property arrangement in fraud of the rights of the surviving spouse means any of the following:
861.17(1)(a)
(a) Any transfer or acquisition of property, regardless of the form or type of property rights involved, made by the decedent during marriage or in anticipation of marriage for the primary purpose of defeating the rights of the surviving spouse under
ch. 852 and this chapter.
861.17(1)(b)
(b) Any breach of the good faith duty imposed by
s. 766.15 made for the primary purpose of defeating the rights of the surviving spouse in or to marital property.
861.17(2)
(2) An arrangement made before marriage, or within one year after marriage, or prior to April 1, 1971, to provide for issue by a prior marriage is not a fraudulent property arrangement within the meaning of this section.
861.17(3)
(3) If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the share the spouse would receive under
ch. 852 and this chapter. Other rules of this chapter apply so far as possible. Recovery forfeits any power of appointment which the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power.
861.17(3m)
(3m) If the spouse is successful in an action to reach fraudulent property arrangements involving marital property, recovery is limited to the surviving spouse's interest in the marital property. Other rules of this chapter apply so far as possible. Recovery forfeits any power of appointment which the surviving spouse possesses over the remaining portion of the fraudulently arranged marital property, except a special power.
861.17(4)
(4) The surviving spouse has no rights against any person dealing with the property without actual knowledge, or receipt of written notice, of the claim of the spouse. A person who has knowledge of facts and circumstances sufficient to put the person on inquiry as to a claim by the spouse does not have actual knowledge and is not required to make further inquiry. This subsection does not protect a gratuitous donee from the original beneficiary of the fraudulent arrangement.
861.17(5)
(5) Every such suit must be brought within 3 years of decedent's death, but may be barred by laches at an earlier date.
861.20
861.20
Surviving spouse's right in nondomiciliary decedent's real property in this state. 861.20(1)
(1) If a married person who does not have a domicile in this state dies and leaves a valid will disposing of real property in this state which is not the community property or marital property of the decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in that property against the will of the decedent as if the property were located in the decedent's domicile at the decedent's death. The procedure of the decedent's domicile for electing against the will applies to such an election.
861.20(2)
(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 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.
861.20 History
History: 1985 a. 37;
1987 a. 393.
861.21
861.21
Assignment of home to surviving spouse. 861.21(1)(b)
(b) "Home" means any dwelling in which the decedent had an interest and that 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 designated by the surviving spouse. "Home" includes a house, a mobile home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse and a building used in part for a dwelling and in part for commercial or business purposes. "Home" includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under
sub. (5).
861.21(2)
(2) If marital 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.
861.21(3)
(3) If interest in home in intestate estate. Subject to
subs. (4) and
(5), if the intestate estate includes an interest in a home, the decedent's entire interest shall be assigned to the surviving spouse if the surviving spouse petitions the court requesting such a distribution. The surviving spouse shall file the petition within 6 months after the decedent's death, unless the court extends the time for filing.
861.21(4)
(4) Payment by surviving spouse. The court shall assign the interest in the home to the surviving spouse upon payment of the value of the interest that does not pass to the surviving spouse under intestacy or under the 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.
861.21(5)
(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, 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.
861.21 History
History: 1997 a. 188.
861.31
861.31
Allowance to family during administration. 861.31(1c)(1c) In this section, "dependent child" means any of the following:
861.31(1c)(b)
(b) An adult child of the decedent who was being supported by the decedent at the time of the decedent's death.
861.31(1m)
(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 determines necessary or appropriate for the support of the surviving spouse and any dependent children during the administration of the estate. In making or denying the order the court shall consider the size of the probate estate, other resources available for support, existing standard of living, and any other factors it considers relevant.
861.31(2)
(2) The allowance may be made to the spouse for support of the spouse and any dependent children, or separate allowances may be made to the spouse and to the dependent children or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse the allowance may be made to the dependent children or to their guardian, if any.
861.31(3)
(3) The initial order for support may not exceed one year but may be extended for additional periods of not to exceed one year at a time, and is subject to revision or termination at any time by further order of the court.
861.31(4)
(4) The court may direct that the allowance be charged against income or principal, either as an advance or otherwise, but in no event may an allowance for support of dependent children be charged against the income or principal interest of the surviving spouse. The court may direct that the allowance for support of the surviving spouse, not including any allowance for support of dependent children, be applied in satisfaction of any of the following:
861.31 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
861.31 Annotation
Widow's allowances and the IRC. Miller, 54 MLR 193.
861.33
861.33
Selection of personalty by surviving spouse or children. 861.33(1)(a)(a) 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 be transferred to the spouse or children by the personal representative:
861.33(1)(a)1.
1. Wearing apparel and jewelry held for personal use by the decedent or the surviving spouse;
861.33(1)(a)3.
3. Household furniture, furnishings and appliances; and
861.33(1)(a)4.
4. Other tangible personalty not used in trade, agriculture or other business, not to exceed $3,000 in inventory value.
861.33(1)(b)
(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 are specifically bequeathed are not classifiable as normal household furniture or furnishings.
861.33(1)(c)
(c) If there is no surviving spouse and the selection is being made by fewer than all of the decedent's children, the child or children selecting the property must have the written consent of all of the other children, or the selection must be approved by the court.
861.33(2)
(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 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.
861.33(3)
(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.
861.33(4)
(4) Subject to
sub. (1) (c), 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 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.
861.35
861.35 Special allowance for support of spouse and support and education of dependent children. 861.35(1m)
(1m) If the decedent is survived by a spouse or by children, the court may order an allowance for the support and education of each dependent child and for the support of the spouse. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse, the court also may allot directly to any of the dependent children household furniture, furnishings and appliances. No allowance may be made under this section if any of the following apply:
861.35(1m)(a)
(a) The decedent has amply provided for each child and for the spouse by the terms of his or her will and the estate is sufficient to carry out the terms after payment of all debts and expenses, or support and education have been provided for by any other means.
861.35(1m)(b)
(b) In the case of dependent children, if the surviving spouse is legally responsible for support and education and has ample means to provide them in addition to his or her own support.
861.35(1m)(c)
(c) In the case of the surviving spouse, if he or she has ample means to provide for his or her support.
861.35(2)
(2) The court may set aside property to provide an allowance and may appoint a trustee to administer the property, subject to the continuing jurisdiction of the court. If at any time the property held by the trustee is no longer required for the support of the spouse or the support and education of any dependent child, any remaining property is to be distributed by the trustee as directed by the court in accordance with the terms of the decedent's will or to the heirs of the decedent in intestacy or to satisfy unpaid claims of the decedent's estate.
861.35(3)
(3) In making an allowance under this section, the court shall consider all of the following:
861.35(3)(a)
(a) The effect on claims under
s. 859.25. The court shall balance the needs of the spouse or dependent children against the nature of the creditors' claims in setting the amount allowed under this section.
861.35(3)(e)
(e) Whether the provisions of a marital property agreement will create a hardship for the surviving spouse.
861.35(3)(f)
(f) Any other factors that the court considers relevant.
861.35(4)
(4) The court may direct that the allowance to the surviving spouse, not including any allowance for the support and education of dependent children, be applied in satisfaction of any of the following:
861.35 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
861.41
861.41
Exemption of property to be assigned to surviving spouse. 861.41(1)(1) After the amount of claims against the estate has been ascertained, the surviving spouse may petition the court to set aside as exempt from the claims of creditors under
s. 859.25 (1) (h) an amount of property reasonably necessary for the support of the spouse, not to exceed $10,000 in value, if it appears that the assets are insufficient to pay all claims and allowances and still leave the surviving spouse such an amount of property in addition to selection and allowances.
861.41(2)
(2) The court shall grant the petition if it determines that an assignment ahead of creditors is reasonably necessary for the support of the spouse. In determining the necessity and the amount of property to be assigned, the court must take into consideration the availability of a home to the surviving spouse and all other assets and resources available for support.
861.43
861.43
Authority and powers of conservator, guardian or agent. A conservator, guardian or guardian ad litem of the spouse or of a child of the decedent, or an agent of the spouse or of a child of the decedent acting under a power of attorney, may on behalf of the spouse or child exercise any of the rights, apply for any of the allowances or make any of the selections that apply to the spouse or child under this subchapter.
