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 the 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 revisions 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, 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;
2001 a. 102.
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.
854.15(5)(f)
(f) There is a finding of the decedent's contrary intent. Extrinsic evidence may be used to construe that intent.
854.15(6)
(6) Revocation of nontestamentary provision in marital property agreement. The effect of a judgment of annulment, divorce or legal separation on marital property agreements under
s. 766.58 is governed by
s. 767.266 (1).
854.15 History
History: 1997 a. 188.
854.15 Annotation
Retroactive application of sub. (3) (a) is constitutional. Allstate Life Insurance Co. v. Hanson,
200 F. Supp. 2d 1012 (2002).
854.15 Annotation
New Probate Code Affects Estate Planning at Divorce. Hughes. Wis. Law. March 1999.
854.17
854.17
Classification; how determined. In
chs. 851 to
882, classification of the property of a decedent spouse and surviving spouse is determined under
ch. 766.
854.17 History
History: 1985 a. 37;
1997 a. 188 s.
92; Stats. 1997 s. 854.17.
854.18
854.18
Order in which assets apportioned; abatement. 854.18(1)(a)(a) Except as provided in
sub. (3) or in connection with the share of the surviving spouse who elects to take an elective share in deferred marital property under
s. 861.02, a spouse who takes under
s. 853.11 (2) or a child who takes under
s. 853.25, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
854.18(1)(a)1.
1. If the governing instrument is a will, property subject to intestacy.
854.18(1)(a)2.
2. Residuary transfers or devises under the governing instrument.
854.18(1)(a)3.
3. General transfers or devises under the governing instrument.
854.18(1)(a)4.
4. Specific transfers or devises under the governing instrument.
854.18(1)(b)
(b) For purposes of abatement, a general transfer or devise charged on any specific property or fund is a specific transfer to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, it is a general transfer to the extent of the failure or insufficiency.
854.18(2)(a)(a) Abatement within each classification is in proportion to the amount of property that each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the governing instrument.
854.18(2)(b)
(b) If the subject of a preferred transfer is sold or used incident to administration of an estate, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
854.18(3)
(3) If the governing instrument expresses an order of abatement, or if the decedent's estate plan or the express or implied purpose of the transfer would be defeated by the order of abatement under
sub. (1), the shares of the distributees abate as necessary to give effect to the intention of the transferor.
854.18 History
History: 1997 a. 188.
854.19
854.19
Penalty clause for contest. A provision in a governing instrument that prescribes a penalty against an interested person for contesting the governing instrument or instituting other proceedings relating to the governing instrument may not be enforced if the court determines that the interested person had probable cause for instituting the proceedings.
854.19 History
History: 1997 a. 188.
854.20
854.20
Status of adopted persons. 854.20(1)
(1)
Inheritance rights between adopted person and adoptive relatives. Subject to
sub. (4), a legally adopted person is treated as a birth child of the person's adoptive parents for purposes of intestate succession by, through and from the adopted person and for purposes of any statute conferring rights upon children, issue or relatives in connection with the law of intestate succession or governing instruments.
854.20(2)
(2) Inheritance rights between adopted person and birth relatives. Subject to
sub. (4), a legally adopted person ceases to be treated as a child of the person's birth parents for the same purposes as under
sub. (1), except:
854.20(2)(a)
(a) If a birth parent marries or remarries and the child is adopted by the stepparent, for all purposes the child is treated as the child of the birth parent whose spouse adopted the child.
854.20(2)(b)
(b) If a birth parent of a marital child dies and the other birth parent remarries and the child is adopted by the stepparent, the child is treated as the child of the deceased birth parent for purposes of inheritance through that parent and for purposes of any statute conferring rights upon children, issue or relatives of that parent under the law of intestate succession or governing instruments.
854.20(3)
(3) Sequential adoption. Subject to
sub. (4), if an adoptive parent dies or his or her parental rights are terminated in a legal proceeding and the adopted child is subsequently adopted by another person, the former adoptive parent is considered to be a birth parent for purposes of this section.
854.20(4)
(4) Applicability. Subsections (1),
(2) and
(3) apply only if at least one of the following applies:
854.20(4)(a)
(a) The decedent or transferor is the adoptive parent or adopted child.
854.20(4)(b)
(b) The adopted person was a minor at the time of adoption.
854.20(4)(c)
(c) The adopted person was raised as a member of the household by the adoptive parent from the child's 15th birthday or before.
854.20(5)
(5) Contrary intent. This section does not apply if the transfer is made under a governing instrument and there is a finding of contrary intent of the person who executed the instrument. Extrinsic evidence may be used to construe that intent.
854.20 History
History: 1983 a. 447;
1993 a. 486;
1997 a. 188 ss.
96,
175; Stats. 1997 s. 854.20.
854.21
854.21
Persons included in family groups or classes. 854.21(1)(a)(a) Except as provided in
par. (b) or
sub. (7), a gift of property by a governing instrument to a class of persons described as issue, lawful issue, children, grandchildren, descendants, heirs, heirs of the body, next of kin, distributees or the like includes a person adopted by a person whose birth child would be a member of the class, and issue of the adopted person, if the conditions for membership in the class are otherwise satisfied and any of the following applies:
854.21(1)(a)1.
1. The transferor is the adoptive parent or adopted child.
854.21(1)(a)2.
2. The adopted person was a minor at the time of adoption.
854.21(1)(a)3.
3. The adopted person was raised as a member of the household by the adoptive parent from the child's 15th birthday or before.
854.21(1)(b)
(b) Except as provided in
sub. (7), a gift under
par. (a) excludes a birth child and his or her issue otherwise within the class if the birth child has been adopted and would cease to be a child of the birth parent under
s. 854.20 (2).
854.21(2)
(2) Individuals born to unmarried parents. 854.21(2)(a)(a) Subject to
par. (b) and
sub. (7), individuals born to unmarried parents are included in class gifts and other terms of relationship in accordance with
s. 852.05.
854.21(2)(b)
(b) In addition to the requirements of
par. (a) and subject to the provisions of
sub. (7), in construing a disposition by a transferor who is not the birth parent, an individual born to unmarried parents is not considered to be the child of a birth parent unless that individual lived while a minor as a regular member of the household of that birth parent or of that birth parent's parent, brother, sister, spouse or surviving spouse.
854.21(3)
(3) Relatives by marriage. Subject to
sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by blood and relationships by marriage are construed to exclude relatives by marriage.
