766.58(12)(a)(a) A provision of a document signed before the determination date by spouses or unmarried persons who subsequently married each other, which provision affects the property of either of them and is enforceable by either of them without reference to this chapter, is not affected by this chapter except as provided otherwise in a marital property agreement made after the determination date. 766.58(12)(b)(b) If a provision or an amendment to a provision in a document described under par. (a) is intended to negate, apply or modify any right or obligation which may be acquired under 1983 Wisconsin Act 186, 1985 Wisconsin Act 37, or a community property system, the provision or amendment is enforceable after the determination date if the document was enforceable when executed or, if it is executed after April 4, 1984, either was enforceable when executed or would be enforceable if it were executed after the determination date. 766.58(12)(c)(c) This subsection does not affect a marital property agreement executed under s. 766.585. 766.58(13)(a)(a) With respect to a provision of a marital property agreement that is effective upon or after dissolution of the marriage or termination of the marriage by death, any statute of limitations applicable to enforcement of the provision is tolled until dissolution of the marriage or termination of the marriage by death, respectively. 766.58(13)(b)1.1. After the death of a spouse, if an estate administration proceeding is filed, no action concerning a marital property agreement may be brought later than 6 months after the inventory is filed under s. 858.01. If an amended inventory is filed, the action may be brought within 6 months after the filing of the amended inventory if the action relates to information contained in the amended inventory that was not contained in a previous inventory. 766.58(13)(b)2.2. After the death of a spouse, if no estate administration proceeding is filed, no action concerning a marital property agreement may be brought later than 8 months after the death of the spouse. 766.58(13)(b)3.3. If an action concerning a marital property agreement is barred under subd. 2. and an estate administration proceeding is thereafter commenced, any judgment in an action concerning a marital property agreement not barred under subd. 1. may be recovered only from the estate of the deceased spouse. 766.58(13)(c)(c) The court may extend the 6-month period under par. (b) 1. for cause if a motion for extension is made within the applicable 6-month period. 766.58(14)(14) Limitations on the effect of marital property agreements for state income tax purposes are set forth in ch. 71. 766.58 AnnotationDiscussing whether property agreements are inequitable under s. 767.255 (11) [now s. 767.61 (3) (L)]. Button v. Button, 131 Wis. 2d 84, 388 N.W.2d 546 (1986). 766.58 AnnotationAn annuity that transferred ownership from the owner to a “co-annuitant” on the owner’s death was a joint account under s. 705.04 (1) and a contractual agreement that created a nonprobate transfer under s. 705.20 (1). Both will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis. 2d 853, 616 N.W.2d 118, 99-1211. 766.58 AnnotationNo provision of sub. (3) or s. 705.20 permits parties to ignore ch. 854 or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will” provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes’ Retirement System Annuity & Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254. 766.58 AnnotationWisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.
766.58 AnnotationA Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. July 1999.
766.585766.585 Marital property agreements before determination date. 766.585(1)(1) After April 4, 1984, and before their determination date, spouses or unmarried persons who subsequently marry each other may execute a marital property agreement under s. 766.58, which is intended to apply only after their determination date, to the same extent that persons may execute a marital property agreement under s. 766.58 after their determination date. The marital property agreement does not apply before the persons’ determination date. Upon application, the marital property agreement has the same effect as if executed after the persons’ determination date. 766.585(2)(2) Notwithstanding the execution of the marital property agreement before the persons’ determination date and notwithstanding the January 1, 1986, effective date of 1983 Wisconsin Act 186 and 1985 Wisconsin Act 37, the law in effect on the date when the marital property agreement applies, not on the date of execution of the marital property agreement, applies to the execution and enforceability or other legal effect of the marital property agreement. 766.585(3)(3) A document executed by spouses or unmarried persons who subsequently marry each other which is intended to apply in whole or in part before their determination date is governed by s. 766.58 (12). 766.585 HistoryHistory: 1985 a. 37, 332. 766.587766.587 Statutory individual property classification agreement. 766.587(1)(a)(a) Spouses may execute a statutory individual property classification agreement under this section to classify all the property of the spouses, including property presently owned and property acquired in the future but before the agreement terminates, as the individual property of the owner. Ownership of the property of the spouses is determined as if it were December 31, 1985. Except as provided in this section, s. 766.58 applies to an agreement under this section. Persons intending to marry each other may execute an agreement as if married, but the agreement becomes effective only upon their marriage. The form of the agreement is set forth in sub. (7). 766.587(1)(b)(b) If, while an agreement is in effect, spouses acquire property as a joint tenancy exclusively between themselves or as survivorship marital property, the property is classified as the individual property of the owners and is owned as a joint tenancy. If, while an agreement is in effect, spouses acquire property held in a form as provided under s. 766.60 (1) or (2), the property is classified as the individual property of the owners and is owned as a tenancy in common. 766.587(2)(2) Execution. An agreement under this section is executed when signed by both spouses. 766.587(3)(a)(a) An agreement under this section may be executed on or after January 1, 1986. If executed before January 1, 1986, it is effective on January 1, 1986, or upon the marriage of the parties, whichever is later. If executed on or after January 1, 1986, it is effective when executed or upon the marriage of the parties, whichever is later. 766.587(3)(b)(b) An agreement under this section terminates on January 1, 1987. Termination does not affect the classification of property acquired before termination. Property acquired after termination is classified as provided under this chapter. 766.587(4)(4) Enforceability. An agreement under this section is enforceable without the disclosure of a spouse’s property or financial obligations to the other spouse. 766.587(5)(5) Effect on support and at divorce. An agreement under this section does not affect the duty of support that spouses have to each other or the determination of property division under s. 767.61 or of maintenance payments under s. 767.56. 766.587(6)(6) Rights of surviving spouse. Notwithstanding the fact that an agreement under this section is in effect at, or has terminated before, the death of a spouse who is a party to the agreement, the surviving spouse may elect under s. 861.02. For the purpose of the election, in addition to the property described in s. 851.055, property acquired during marriage and after the determination date which would have been marital property but for the agreement is deferred marital property. 766.587(7)(7) Statutory individual property classification agreement form. The following is the form for a statutory individual property classification agreement under this section: NOTICE TO PERSONS WHO SIGN THIS AGREEMENT:
1. EFFECTIVE JANUARY 1, 1986, A NEW PROPERTY LAW, KNOWN AS THE MARITAL PROPERTY SYSTEM, GOVERNS THE PROPERTY RIGHTS OF MARRIED PERSONS IN WISCONSIN. UNDER THE MARITAL PROPERTY SYSTEM, EACH SPOUSE HAS A 50% OWNERSHIP INTEREST IN PROPERTY ACQUIRED DURING MARRIAGE DUE TO THE EFFORTS OF EITHER OR BOTH SPOUSES, SUCH AS WAGES, DEFERRED EMPLOYMENT BENEFITS, LIFE INSURANCE, INCOME FROM PROPERTY AND CERTAIN APPRECIATION OF PROPERTY. BY ENTERING INTO THIS AGREEMENT, YOU HAVE AGREED TO RELINQUISH YOUR RIGHTS TO AN AUTOMATIC OWNERSHIP INTEREST IN SUCH PROPERTY ACQUIRED DURING 1986.
2. CLASSIFICATION BY THIS AGREEMENT OF YOUR AND YOUR SPOUSE’S PROPERTY AS THE INDIVIDUAL PROPERTY OF THE OWNER MAY AFFECT YOUR ACCESS TO CREDIT, THE ACCUMULATION OF AND THE MANAGEMENT AND CONTROL OF PROPERTY BY YOU DURING YOUR MARRIAGE AND THE AMOUNT OF PROPERTY YOU HAVE TO DISPOSE OF AT YOUR DEATH.
3. THIS AGREEMENT TERMINATES ON JANUARY 1, 1987. IF YOU WISH TO CHANGE THIS AGREEMENT BEFORE JANUARY 1, 1987, OR IF YOU WISH TO CONTINUE TO CLASSIFY YOUR PROPERTY AS PROVIDED IN THIS AGREEMENT AFTER IT TERMINATES ON JANUARY 1, 1987, YOU MAY DO SO BY EXECUTING A NEW MARITAL PROPERTY AGREEMENT THAT COMPLIES WITH SECTION 766.58, WISCONSIN STATUTES.
4. THIS AGREEMENT DOES NOT AFFECT RIGHTS AT DIVORCE.
5. IN GENERAL, THIS AGREEMENT IS NOT BINDING ON CREDITORS UNLESS THE CREDITOR IS FURNISHED A COPY OF THE AGREEMENT BEFORE CREDIT IS EXTENDED. IN ADDITION, THIRD PARTIES OTHER THAN CREDITORS MIGHT NOT BE BOUND BY THIS AGREEMENT UNLESS THEY HAVE ACTUAL KNOWLEDGE OF THE TERMS OF THE AGREEMENT.
6. THIS AGREEMENT MAY AFFECT YOUR TAXES.
7. THIS AGREEMENT MAY AFFECT ANY PREVIOUS MARRIAGE AGREEMENT ENTERED INTO BY YOU AND YOUR SPOUSE.
8. THIS AGREEMENT DOES NOT ALTER THE LEGAL DUTY OF SUPPORT THAT SPOUSES HAVE TO EACH OTHER OR THAT A SPOUSE HAS TO HIS OR HER CHILDREN.
9. BOTH SPOUSES MUST SIGN THIS AGREEMENT. IF SIGNED BEFORE JANUARY 1, 1986, IT IS EFFECTIVE ON JANUARY 1, 1986, OR THE DATE THE PARTIES MARRY, WHICHEVER IS LATER. IF SIGNED ON OR AFTER JANUARY 1, 1986, IT IS EFFECTIVE ON THE DATE SIGNED OR THE DATE THE PARTIES MARRY, WHICHEVER IS LATER.
STATUTORY INDIVIDUAL
PROPERTY CLASSIFICATION AGREEMENT
(Pursuant to Section 766.587, Wisconsin Statutes) This agreement is made and entered into by .... and ...., (husband and wife) (who intend to marry) (strike one).
The parties to this agreement agree to classify all their property, including property owned by them now and property acquired before January 1, 1987, as the individual property of the owning spouse, and agree that ownership of their property shall be determined as if it were December 31, 1985.
This agreement terminates on January 1, 1987.
Signature .... Date ....
Print Name
Here: ....
Address: ....
Signature .... Date ....
Print Name
Here: ....
Address: ....
[Note: Each spouse should retain a copy of the agreement for himself or herself.]
766.587(8)(8) Other means of classification. This section is not the exclusive means by which spouses may, before January 1, 1987, classify their property as the individual property of the owner. 766.588766.588 Statutory terminable marital property classification agreement. 766.588(1)(a)(a) Spouses may execute an agreement under this section to classify the property of the spouses presently owned and property acquired, reclassified or created in the future, as marital property. Except as provided in this section, s. 766.58 applies to an agreement under this section. The form of the agreement is set forth in sub. (9). Persons intending to marry each other may execute an agreement as if married, but the agreement becomes effective only upon their determination date. 766.588(1)(b)(b) Notwithstanding an agreement under this section: 766.588(1)(b)1.1. The marital property interest of the nonemployee spouse in a deferred employment benefit plan or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan terminates at the death of the nonemployee spouse if he or she predeceases the employee spouse; and 766.588(1)(b)2.2. The marital property interest of a decedent spouse in a life insurance policy which designates the surviving spouse as the owner and insured is limited as provided under s. 766.61 (7). 766.588(1)(c)1.1. If property is held as survivorship marital property under s. 766.60 (5) (a) or 766.605 at the time an agreement under this section becomes effective, or if property is held as or acquired as survivorship marital property under s. 766.60 (5) (a) or 766.605 while an agreement is in effect, the property remains survivorship marital property as long as it is so held. 766.588(1)(c)2.2. A joint tenancy which is held exclusively between the spouses when an agreement under this section becomes effective or while an agreement is in effect is survivorship marital property. 766.588(1)(c)3.3. A tenancy in common which is held exclusively between the spouses when an agreement under this section becomes effective or while an agreement is in effect is marital property. 766.588(1)(c)4.4. With respect to a tenancy in common or joint tenancy not described under subds. 2. and 3. in which at least one spouse is a tenant when an agreement under this section becomes effective or while an agreement is in effect, to the extent the incidents of the tenancy in common or joint tenancy conflict with or differ from the incidents of marital property, the incidents of the tenancy in common or of the joint tenancy, including the incident of survivorship, control. 766.588(1)(d)2.2. An agreement under this section does not defeat the survivorship feature of a joint account under s. 705.04 (1). 766.588(1)(d)3.3. An agreement under this section does not affect the ownership, under s. 705.04 (2m), of sums remaining on deposit in a marital account at the death of a party to the account, regardless of when the agreement became effective or the marital account was established. 766.588(2)(2) Execution. An agreement under this section shall be signed by both parties to the agreement. An agreement under this section is executed when the signature of each party to the agreement is authenticated or acknowledged. The agreement executed shall conform to the requirements under sub. (9). 766.588(3)(3) Effective date and effective period. 766.588(3)(a)(a) An agreement under this section is effective when executed or upon the determination date, whichever is later. 766.588(3)(b)(b) If the spouses have not completed the financial disclosure form under sub. (9) before or contemporaneously with execution of the agreement, the agreement terminates 3 years after the date that both spouses have signed the agreement, unless terminated earlier by one of the spouses under sub. (4). 766.588(3)(c)(c) If the spouses have completed the financial disclosure form under sub. (9), the agreement terminates when the terms of the agreement no longer apply after dissolution or the death of a spouse, unless terminated earlier by one of the spouses under sub. (4). 766.588(3m)(3m) Limitation on execution of 3-year agreement. If spouses execute an agreement under this section which becomes effective for any period and if the spouses did not complete the financial disclosure form under sub. (9) for that agreement, the spouses may not execute a subsequent agreement under this section for the same marriage unless the financial disclosure form under sub. (9) is completed. 766.588(4)(a)(a) An agreement under this section terminates 30 days after a notice of termination is given under par. (b) by one spouse to the other spouse. An example of a termination form is set forth in sub. (9). 766.588(4)(b)(b) Notice of termination is given to the other spouse on the date: 766.588(4)(b)1.1. That a signed termination is personally delivered to the other spouse; or
