861.08(2)
(2) Notification of interested parties. The surviving spouse shall give notice, in the manner provided in
ch. 879, of the time and place set for hearing the petition to any persons who may be adversely affected by the election.
861.08(3)
(3) Extension of time for election. 861.08(3)(a)(a) Subject to
par. (b), the court may grant the surviving spouse an extension for making an election if the surviving spouse petitions the court for an extension, gives notice as specified in
sub. (2) and shows cause for an extension.
861.08(3)(b)
(b) The petition for extension of the time for making an election must be filed within 6 months after the decedent's death, unless the court finds all of the following:
861.08(3)(b)1.
1. That the surviving spouse was prevented from filing the action or naming a particular interested party for reasons beyond his or her control.
861.08(3)(b)2.
2. That failure to extend the time for making an election will result in hardship for the surviving spouse.
861.08(4)
(4) Withdrawal of election. The surviving spouse may withdraw the petition for an election at any time before the probate court has entered the final determination of the distribution of the decedent's estate.
861.08(5)
(5) Court determination of liability. 861.08(5)(a)(a) After notice and hearing, the court shall determine the deferred marital property elective share amount and shall determine the property that satisfies that amount under
ss. 861.06 and
861.07.
861.08(5)(b)
(b) If the personal representative does not hold the money or property included in the augmented deferred marital property estate, the court shall determine the liability of any person or entity that has any interest in the money or property or that holds that money or property.
861.08(5)(c)
(c) The surviving spouse may choose to seek relief from fewer than all recipients. However, any such action shall not cause any other recipient's liability to exceed the amount that he or she would have had to pay if all recipients had paid a prorated share.
861.08(6)
(6) Suits authorized. An order or judgment of the court may be enforced in a suit for contribution or payment in other courts of this state or other jurisdictions.
861.08 History
History: 1997 a. 188.
861.09
861.09
Right of election by or on behalf of surviving spouse. The surviving spouse must be living in order for an election to be filed. If the surviving spouse does not personally file the election, it may be filed on the surviving spouse's behalf by the spouse's conservator, guardian or guardian ad litem, or by an agent of the spouse acting under a power of attorney.
861.09 History
History: 1997 a. 188.
861.10
861.10
Waiver of right to elect; failure to elect. 861.10(1)(1)
Right to elect may be waived. The right to elect a deferred marital property elective share may be waived by the surviving spouse in whole or in part. The waiver may take place before or after marriage. The waiver shall be contained in a marital property agreement that is enforceable under
s. 766.58 or in a signed document filed with a court described in
s. 861.08 (1) (a) after the decedent's death.
861.10(2)
(2) Waiver of "all rights". Unless the waiver provides otherwise, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse, or in a complete property settlement entered into because of separation or divorce, is a waiver of all rights in the deferred marital property elective share.
861.10(3)
(3) Failure to elect. Failure of a surviving spouse to elect is not a transfer of property and is not a gift from the surviving spouse to the decedent spouse's probate estate or to the beneficiaries of other transfers.
861.10 History
History: 1997 a. 188.
861.11
861.11
Protection of payers and other 3rd parties. 861.11(1)(1)
Definition. In this section, "governing instrument" includes a filed verified statement under
s. 865.201, a certificate under
s. 867.046 (1m) or a recorded application under
s. 867.046 (5).
861.11(2)
(2) Payer not liable until notice received. 861.11(2)(a)(a) Upon a beneficiary's request for payment, a payer or other 3rd party who has received satisfactory proof of the decedent's death and who has not received written notice that the surviving spouse or his or her representative intends to file a petition for the deferred marital property elective share or that a petition for the election has been filed is not liable for any of the following:
861.11(2)(a)1.
1. Causing any payment, item of property or other benefit included in the augmented deferred marital property estate under
s. 861.03, to transfer directly to the beneficiary designated in a governing instrument.
861.11(2)(a)2.
2. Any other action in good faith reliance on the validity of a governing instrument.
861.11(2)(b)
(b) A payer or other 3rd party is liable for payments made or other actions taken after receipt of written notice of the intent to file a petition for the elective share or written notice that a petition for the elective share has been filed.
861.11(3)
(3) Method of notice to payers. A written notice of the intent to file a petition for the election or written notice that a petition for the election has been filed shall fulfill one of the following requirements:
861.11(3)(a)
(a) Be mailed to the payer's or other 3rd party's main office or home by registered or certified mail, return receipt requested.
861.11(3)(b)
(b) Be served upon the payer or other 3rd party in the same manner as a summons in a civil action.
861.11(4)
(4) Optional payment of proceeds to court. 861.11(4)(a)(a) Upon receipt of written notice of the intent to file, or the filing of, a petition for the election, a payer or other 3rd party may pay any amount owed or transfer or deposit any item of property to or with whichever of the following applies:
861.11(4)(a)1.
1. The court that has jurisdiction of the probate proceedings relating to the decedent's estate if proceedings have been commenced.
861.11(4)(a)2.
2. The court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence, if no judicial proceeding has commenced.
861.11(4)(b)
(b) Payments, transfers or deposits made to the court discharge the payer or other 3rd party from all claims for amounts paid or the value of property transferred or deposited.
861.11(4)(c)
(c) The court shall hold the funds or items of property. After the court makes its determination under
s. 861.08 (5), it shall order disbursement in accordance with that determination. The court shall order disbursement to the beneficiary designated in the governing instrument if either of the following conditions applies:
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.
