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.
861.43 History
History: 1997 a. 188.
