854.13(4)(c)
(c)
Future right to income or principal. Notwithstanding
pars. (a) and
(b), an instrument disclaiming the future right to receive discretionary or mandatory distributions of income or principal from any source may be executed and delivered at any time.
854.13(4)(d)
(d)
Persons under 21. Notwithstanding
pars. (a) and
(b), a person under 21 years of age may disclaim at any time not later than 9 months after the date on which the person attains 21 years of age.
854.13(4)(e)
(e)
Interests arising by disclaimer. Notwithstanding
pars. (a) and
(b), a person whose interest in property arises by disclaimer or by default of exercise of a power of appointment created by a governing instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date of death of the donee of the power of appointment.
854.13(5)
(5) Delivery and filing of disclaimer. 854.13(5)(a)(a)
Delivery. In addition to any requirements imposed by the governing instrument, the instrument of disclaimer is effective only if, within the time specified under
sub. (4), it is delivered to and received by any of the following:
854.13(5)(a)1.
1. The transferor of the property disclaimed, if living.
854.13(5)(a)2.
2. The personal representative or special administrator of the deceased transferor of the property.
854.13(5)(b)
(b)
Delivery to trustee. If the trustee of any trust to which the interest or power of appointment relates does not receive the instrument of disclaimer under
par. (a), a copy shall also be delivered to the trustee.
854.13(5)(c)
(c)
Filing. When delivery is made to the personal representative or special administrator of a deceased transferor, a copy of the instrument of disclaimer shall be filed in the probate court having jurisdiction.
854.13(5)(d)
(d)
Failure to deliver or file. Failure to deliver a copy of the instrument of disclaimer to the trustee under
par. (b) or to file a copy in the probate court under
par. (c), within the time specified under
sub. (4), does not affect the validity of any disclaimer.
854.13(5)(e)
(e)
Recording. If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.
854.13(6)
(6) Property not vested. The property disclaimed under this section shall be considered not to have been vested in, created in or transferred to the disclaimant.
854.13(7)(a)(a)
In general. Subject to
pars. (bm) and
(c) and
subs. (8),
(9), and
(10), unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, the disclaimed property devolves as if the disclaimant had died before the decedent. If the disclaimed interest is a remainder contingent on surviving to the time of distribution, the disclaimed interest passes as if the disclaimant had died immediately before the time for distribution. If the disclaimant is an appointee under a power of appointment exercised by a governing instrument, the disclaimed property devolves as if the disclaimant had died before the effective date of the exercise of the power of appointment. If the disclaimant is a taker in default under a power of appointment created by a governing instrument, the disclaimed property devolves as if the disclaimant had predeceased the donee of the power of appointment.
854.13(7)(bm)
(bm)
Devolution to issue of the disclaimants. Unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, if, by law or under the governing instrument, the issue of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time the disclaimed interest would have taken effect in possession or enjoyment, the disclaimed interest passes only to the issue of the disclaimant who survive when the disclaimed interest takes effect in possession or enjoyment.
854.13(7)(c)1.1. In this paragraph, “devisable future interest" is a future interest that can be passed under the will of the person who holds the future interest.
854.13(7)(c)2.
2. If the disclaimed interest is a devisable future interest under the law governing the transfer, then the disclaimed interest devolves as if it were a nondevisable future interest.
854.13(8)
(8) Devolution of disclaimed interest in joint tenancy. Unless the decedent provided otherwise in a governing instrument, either expressly or as construed from extrinsic evidence, a disclaimed interest in a joint tenancy passes to the decedent's probate estate.
854.13(9)
(9) Devolution of disclaimed interest in survivorship marital property. Unless the decedent provided otherwise in a governing instrument, either expressly or as construed from extrinsic evidence, a disclaimed interest in survivorship marital property passes to the decedent's probate estate.
854.13(10)
(10) Acceleration of subsequent interests when preceding interest is disclaimed. 854.13(10)(a)(a)
Subsequent interest not held by disclaimant. Unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, upon the disclaimer of a preceding interest, a subsequent interest not held by the disclaimant and limited to take effect in possession or enjoyment after the termination of the interest that is disclaimed accelerates to take effect as if the disclaimant had died immediately before the time when the disclaimed interest would have taken effect in possession or enjoyment or, if the disclaimant is an appointee under a power of appointment and that power of appointment has been exercised, as if the disclaimant had died before the effective date of the exercise of the power of appointment.
854.13(10)(b)
(b)
Subsequent interest held by the disclaimant. Unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, upon the disclaimer of a preceding interest, a subsequent interest held by the disclaimant does not accelerate.
854.13(11g)
(11g) Bar. Bars to a person's right to disclaim property include, but are not limited to, any of the following:
854.13(11g)(a)
(a) The person's assignment, conveyance, encumbrance, pledge, or transfer of the property or a contract for the assignment, conveyance, encumbrance, pledge, or transfer of the property.
854.13(11g)(b)
(b) The person's written waiver of the right to disclaim.
854.13(11g)(c)
(c) The person's acceptance of the property or benefit of the property.
854.13(11p)
(11p) Effect of disclaimer or waiver. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him or her.
854.13(12)(a)(a) This section does not affect the right of a person to waive, release, disclaim or renounce property under any other statute, the common law, or as provided in the creating instrument.
854.13(12)(b)
(b) Any disclaimer that meets the requirements of section
2518 of the Internal Revenue Code, or the requirements of any other federal law relating to disclaimers, constitutes an effective disclaimer under this section or
s. 700.27.
854.13(13)
(13) Construction of effective date. In this section, the effective date of a transfer under a revocable governing instrument is the date on which the person with the power to revoke the transfer no longer has that power or the power to transfer the legal or equitable ownership of the property that is the subject of the transfer.
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 a bequest, thus defeating a creditor's action under s. 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 Annotation
A surviving spouse cannot disclaim a wrongful death claim under s. 854.13 so as to pass ownership of that claim to the deceased's lineal heirs. Bowen v. American Family Insurance Company,
2012 WI App 29,
340 Wis. 2d 232,
811 N.W.2d 887,
11-0185.
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(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(3m)
(3m) Additional effects if death caused by spouse. 854.14(3m)(a)1.
1. “Owner" means a person appearing on the records of the policy issuer as the person having the ownership interest, or means the insured if no person other than the insured appears on those records as a person having that interest. In the case of group insurance, the “owner" means the holder of each individual certificate of coverage under the group plan and does not include the person who contracted with the policy issuer on behalf of the group, regardless of whether that person is listed as the owner on the contract.
854.14(3m)(a)2.
2. “Ownership interest" means the rights of an owner under a policy.
854.14(3m)(a)3.
3. “Policy" means an insurance policy insuring the life of a spouse and providing for payment of death benefits at the spouse's death.
854.14(3m)(a)4.
4. “Proceeds" means the death benefit from a policy and all other economic benefits from it, whether they accrue or become payable as a result of the death of an insured person or upon the occurrence or nonoccurrence of another event.
854.14(3m)(b)1.1. Except as provided in
sub. (6), if a noninsured spouse unlawfully and intentionally kills an insured spouse, the surviving spouse's ownership interest in a policy that designates the decedent spouse as the owner and insured, or in the proceeds of such a policy, is limited to a dollar amount equal to one-half of the marital property interest in the interpolated terminal reserve and in the unused portion of the term premium of the policy on the date of death of the decedent spouse. All other rights of the surviving spouse in the ownership interest or proceeds of the policy, other than the marital property interest described in this subsection, terminate at the decedent spouse's death.
854.14(3m)(b)2.
2. Notwithstanding
s. 766.61 (7) and except as provided in
sub. (6), if an insured spouse unlawfully and intentionally kills a noninsured spouse, the ownership interest at death of the decedent spouse in any policy with a marital property component that designates the surviving spouse as the owner and insured is a fractional interest equal to one-half of the portion of the policy that was marital property immediately before the death of the decedent spouse.
854.14(3m)(c)
(c)
Deferred employment benefits. Notwithstanding
s. 766.62 (5) and except as provided in
sub. (6), if the employee spouse unlawfully and intentionally kills the nonemployee spouse, the ownership interest at death of the decedent spouse in any deferred employment benefit, or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, that has a marital property component and that is attributable to the employment of the surviving spouse is equal to one-half of the portion of the benefit or assets that was marital property immediately before the death of the decedent spouse.
854.14(3m)(d)
(d)
Deferred marital property. Except as provided in
sub. (6), if the surviving spouse unlawfully and intentionally kills the decedent spouse, the estate of the decedent shall have the right to elect no more than 50 percent of the augmented deferred marital property estate, as determined under
s. 861.02 (2), as though the decedent spouse were the survivor and the surviving spouse were the decedent. The court shall construe the provisions of
ss. 861.03 to
861.11 as necessary to achieve the intent of this paragraph.
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.
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.
854.14(5)(c)
(c) In the absence of a judgment establishing criminal accountability under
par. (a) or an adjudication of delinquency under
par. (b), the court, upon the petition of an interested person, shall determine whether, based on the preponderance of the evidence, the killing of the decedent was unlawful and intentional for purposes of this section.
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 Annotation
Statute in the Abyss: The Implications of Insanity on Wisconsin's Slayer Statute. Eisold. 91 MLR 875 (2008).
854.15
854.15
Revocation of provisions in favor of former spouse or former domestic partner. 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 of the following:
854.15(1)(b)1.
1. A divorce, annulment, or other event or proceeding that would exclude a spouse as a surviving spouse under
s. 851.30.
854.15(1)(b)2.
2. A termination of a domestic partnership or other event or proceeding that would exclude a person as a surviving domestic partner under
s. 851.295.
854.15(1)(c)
(c) “Former spouse" means a person whose marriage to the decedent or domestic partnership with 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(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)(am)(am) This section does not apply if any of the following applies:
854.15(5)(am)1.
1. The express terms of a governing instrument provide otherwise.
