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 subject to administration but 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.
861.21
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) Decedent's property interest in home. Subject to
subs. (4) and
(5), if a married decedent has a 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(4)
(4) Payment by surviving spouse. The court shall assign the interest in the home under
sub. (2) to the surviving spouse upon payment of the value of the decedent's interest in the home that does not pass to the surviving spouse under intestacy or under a 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 under
sub. (2), 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;
2005 a. 216.
861.31
861.31
Allowance to family during administration. 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 the court determines necessary or appropriate for the support of the surviving spouse and any minor children of the decedent during the administration of the estate. The court shall consider the size of the probate estate, other resources available for support, the existing standard of living, and any other factors it considers relevant.
861.31(2)
(2) The court may order that an allowance be made to the spouse for support of the spouse and any minor children of the decedent, or that separate allowances be made to the spouse and to the minor children of the decedent or their guardian, if any, if the court finds separate allowances advisable. If there is no surviving spouse, the court may order that an allowance be made to the minor children of the decedent 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 order that the allowance be charged against income or principal, either as an advance or otherwise, but the court may not order that an allowance for support of minor children of the decedent be charged against the income or principal interest of the surviving spouse. The court may order that the allowance for support of the surviving spouse, not including any allowance for support of minor children of the decedent, 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. 861.33(1)(a)(a) Subject to this section, in addition to all allowances and distributions, the surviving spouse may file with the court a written selection of the following personal property, which shall then be transferred to the spouse 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 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 that are specifically bequeathed are not classifiable as normal household furniture or furnishings.
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 under this section to items not exceeding $5,000 in aggregate inventory value until the claims are paid in full or the court otherwise orders, or the court may require the spouse to retransfer property in excess of $5,000 or, at the option of the spouse, pay the excess in value over this amount.
861.33(3)
(3) The surviving spouse 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) The personal representative has power, without court order, to execute appropriate documents to effect transfer of title to any personal property the spouse selects 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 of the decedent.
861.35
861.35
Special allowance for support of spouse and support and education of minor children. 861.35(1m)
(1m) If the decedent is survived by a spouse or by minor children, the court may order an allowance for the support and education of each minor child until he or she reaches a specified age, not to exceed 18, 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 the minor children household furniture, furnishings, and appliances. The court may not order an allowance under this section if any of the following applies:
861.35(1m)(a)
(a) The decedent has amply provided for each minor child and for the spouse by the transfer of probate or nonprobate assets, or support and education have been provided for by any other means.
861.35(1m)(b)
(b) In the case of minor children, 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, 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 a child dies or reaches the age of 18, or 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 the minor child, any remaining property is to be distributed by the trustee as the court orders 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 minor 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 order that the allowance to the surviving spouse, not including any allowance for the support and education of minor 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.
