700.01 Cross-reference Cross-reference: See ss. 990.01 (27) and (35) which define real and personal property.
700.02 700.02 Classification of interests in property as to duration. Interests in property are classified as to duration as:
700.02(1) (1)A fee simple absolute;
700.02(2) (2)A defeasible fee simple which may be a fee simple determinable automatically expiring upon the occurrence of a stated event, a fee simple subject to a condition subsequent with a power in the transferor or the transferor's successors in interest to reacquire the fee by reason of a breach of the condition, or a fee simple with a remainder over to a person other than the transferor or the transferor's successors in interest to take effect upon the occurrence of a stated event; for purposes of this subsection, a stated event can be either the happening, or the nonhappening, of a specified occurrence, and can be either certain or not certain to happen;
700.02(3) (3)An interest for life, which may be created for the duration of a life or lives of one or more human beings;
700.02(4) (4)An interest for years, which is any interest the duration of which is described in units of a year or multiples or divisions thereof;
700.02(5) (5)A periodic interest, which will continue for successive periods of a year, or successive periods of a fraction of a year, unless terminated;
700.02(6) (6)An interest at will, which is terminable at the will of either the transferor or the transferee and has no designated period of duration.
700.02 History History: 1991 a. 316.
700.03 700.03 Classification of present and future interests. Interests in property are classified as to time of enjoyment as:
700.03(1) (1)A present interest, which entitles the owner to the present possession or enjoyment of the benefits of property; or
700.03(2) (2)A future interest, which does not entitle the owner to possession or enjoyment of the benefits of property until a future time.
700.04 700.04 Classification of future interests. Future interests are classified as:
700.04(1) (1)A reversionary interest left in the transferor or the transferor's successors in interest, either as a reversion, a possibility of reverter upon the simultaneous creation of a fee simple determinable, or a power of reacquisition; or
700.04(2) (2)An interest created in a person other than the transferor or the transferor's successors in interest, called a remainder, to take effect at the termination of a preceding interest created at the same time or without the intervention of such a preceding interest.
700.04 History History: 1991 a. 316.
700.04 Annotation When a conditional testamentary disposition failed, the court found a gift by implication rather than a reversionary interest that would have contravened the testator's intent. In re Trust of Pauly, 71 Wis. 2d 306, 237 N.W.2d 719 (1976).
700.05 700.05 Classification of remainders. Remainders are classified as:
700.05(1) (1)Indefeasibly vested, if the interest is created in favor of one or more ascertained persons in being and is certain to become a present interest at some time in the future;
700.05(2) (2)Vested subject to open, if the interest is created in favor of a class of persons, one or more of whom are ascertained and in being, and if the interest is certain to become a present interest at some time in the future, but the share of the ascertained remaindermen is subject to diminution by reason of other persons becoming entitled to share as members of the class;
700.05(3) (3)Vested subject to complete defeasance, if the interest is created in favor of one or more ascertained persons in being and would become a present interest on the expiration of the preceding interests but may end or may be completely defeated as provided by the transferor at, before or after the expiration of the preceding interests;
700.05(4) (4)Subject to a condition precedent, if the interest is created in favor of one or more unborn or unascertained persons or in favor of one or more presently ascertainable persons upon the occurrence of an uncertain event.
700.05 History History: 1971 c. 66.
700.06 700.06 Interest for life of another; succession. An interest measured by the life of a person other than the owner of the interest passes on the death of the owner, if the owner's death is prior to the death of the person who is the measuring life, as an asset of the owner's estate and is realty or personalty according to the nature of the property subject to the interest.
700.06 History History: 1999 a. 85.
700.07 700.07 Transferability of future interests. A future interest is transferable during the lifetime of the owner and passes on the owner's death by will or under the law of intestate succession in the same manner as a present interest; but this section does not make an interest transferable if a valid condition or limitation restricts transfer, nor permit an interest to pass at death if the interest ends at death.
700.07 History History: 1991 a. 316.
700.08 700.08 Estate tail becomes fee simple; effect of gift over after attempted estate tail. The use of language in an instrument appropriate to create a present or future interest in fee tail, such as to a named person “and the heirs of his body" or “and the heirs of her body" or “and his issue" or “and her issue", creates a present or future interest in fee simple. If the same instrument attempts to create a future interest after the interest that is made a fee simple by reason of this section, the future interest is valid.
700.08 History History: 1993 a. 486; 1999 a. 85.
700.09 700.09 Interest contingent on death without issue. If an instrument transfers an interest expressly contingent upon the death of a person without “heirs of the body", “descendants", “issue", “children" or relatives described by other terms, the interest takes effect only if that person dies not having such a relative living at the time of death, or conceived then and born alive thereafter.
700.09 History History: 1991 a. 316.
700.10 700.10 Remainder to heirs of owner of life interest; abolition of rule in Shelley's case. If an instrument purports to transfer an interest for life to one person and a remainder to that person's heirs or the heirs of that person's body, a remainder is created in that person's heirs or heirs of that person's body.
700.10 History History: 1991 a. 316.
700.11 700.11 Interests in “heirs" and the like.
700.11(1)(1)If a statute, inter vivos governing instrument, as defined in s. 700.27 (1) (c), or governing instrument, as defined in s. 854.01 (2), specifies that property is to be distributed to, or a future interest is to be created in, a designated individual's “heirs," “heirs at law," “next of kin," “relatives," “family," or a term that has a similar meaning, or if a class gift in favor of “descendants," “issue," or “heirs of the body" does not specify the manner in which the property is to be distributed among the class members, the property is distributed according to s. 854.22.
700.11(2) (2)The common law doctrine of worthier title is abolished under s. 854.22 (3). Situations in which the doctrine may have applied are governed by s. 854.22 (1).
700.11 History History: 1991 a. 316; 1997 a. 188; 2005 a. 216.
700.12 700.12 After-born persons included in class gift. With respect to membership in a class under a class gift, the status of a person who was born after the membership in the class was determined is governed by s. 854.21 (5).
700.12 History History: 1991 a. 316; 1997 a. 188.
700.13 700.13 Remainders presumed not to shorten prior interest; acceleration of remainders.
700.13(1)(1)If an instrument transfers an interest for life or years and a future interest to take effect on a stated contingency not defeating or avoiding the prior interest transferred, and the stated contingency occurs before the normal termination of the prior interest transferred, the future interest takes effect at the normal termination of the prior interest.
700.13(2) (2)The effect of a renunciation or release of an interest for life or years is as provided in ss. 700.27 (8) and 854.13 (10).
700.13 History History: 2005 a. 216.
700.14 700.14 Indestructibility of contingent future interests. No future interest is destroyed merely by the termination in any manner of any or all preceding interests before the happening of a contingency to which the future interest is subject.
700.15 700.15 Nominal conditions not enforced. A condition imposed by the transferor is not enforceable if it is or becomes merely nominal and of no actual or substantial benefit to the transferor or other person in whose favor it is to be performed.
700.16 700.16 Perpetuities and suspension of power of alienation.
700.16(1)(1)
700.16(1)(a) (a) A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The permissible period is a life or lives in being plus a period of 30 years.
700.16(1)(b) (b) If the settlor of a living trust has an unlimited power to revoke, the permissible period is computed from termination of such power.
700.16(1)(c) (c) If a future interest or trust is created by exercise of a power of appointment, the permissible period is computed from the time the power of appointment is exercised if the power of appointment is a general power of appointment as defined in s. 702.02 (5) even if the general power of appointment is exercisable only by will. In the case of other powers of appointment the permissible period is computed from the time the power of appointment is created but facts at the time the power of appointment is exercised are considered in determining whether the power of alienation is suspended beyond a life or lives in being at the time of creation of the power of appointment plus 30 years.
700.16(2) (2)The power of alienation is suspended when there are no persons in being who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personalty.
700.16(3) (3)There is no suspension of the power of alienation by a trust or by equitable interests under a trust if the trustee has power to sell, either expressed or implied, or if there is an unlimited power to terminate in one or more persons in being.
700.16(4) (4)This section does not apply to limit any of the following:
700.16(4)(a) (a) Transfers, outright or in trust, for charitable purposes;
700.16(4)(b) (b) Transfers to literary or charitable corporations;
700.16(4)(bm) (bm) Transfers to a veteran's memorial organization under s. 84.09 (5r);
700.16(4)(c) (c) Transfers to any cemetery corporation, society or association;
700.16(4)(d) (d) Transfers, outright or in trust, to the state society of physicians and surgeons incorporated under the law of this state, when the transfer is for the advancement of medical science;
700.16(4)(e) (e) Transfers to any person pursuant to ch. 703; or
700.16(4)(f) (f) Employees' trusts created as part of a plan or contract as described in s. 815.18 (3) (j).
700.16(5) (5)The common-law rule against perpetuities is not in force in this state.
700.16 History History: Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975); 1983 a. 189 s. 329 (26); 1989 a. 278; 1995 a. 406; 2013 a. 92.
700.17 700.17 Classification and characteristics of certain concurrent interests.
700.17(1)(1)Classification of concurrent interests. Interests in property may be owned concurrently by 2 or more persons as joint tenants or as tenants in common. A joint tenancy or tenancy in common established exclusively between spouses after the determination date is classified as provided under s. 766.60 (4) (b).
700.17(2) (2)Characteristics of joint tenancy.
700.17(2)(a)(a) Each of 2 or more joint tenants has an equal interest in the whole property for the duration of the tenancy, irrespective of unequal contributions at its creation. On the death of one of 2 joint tenants, the survivor becomes the sole owner; on the death of one of 3 or more joint tenants, the survivors are joint tenants of the entire interest. If a survivor disclaims under s. 854.13 (2) (b), the joint tenancy is severed as of the date of death with respect to the disclaimed interest.
700.17(2)(am) (am) Survivorship under par. (a) is governed by s. 854.03 (2).
700.17(2)(b) (b) If a joint tenant unlawfully and intentionally kills another joint tenant of the same property, the disposition of the deceased joint tenant's interest in the joint tenancy is governed by s. 854.14.
700.17(3) (3)Characteristics of tenancy in common. Each of 2 or more tenants in common has an undivided interest in the whole property for the duration of the tenancy. There is no right of survivorship incident to a tenancy in common, but a remainder may be created to vest ownership in the survivor of several persons who own as tenants in common other preceding interests, such as a life interest, in the same property.
700.17 Note NOTE: As to sub. (1), see notes in 1985 Wis. Act 37, marital property trailer bill.
700.17 Annotation Rental income must be attributed to joint tenants in proportion to ownership. McManus v. Department of Revenue, 91 Wis. 2d 682, 283 N.W.2d 576 (1979).
700.17 Annotation Concurrent ownership; joint tenancy and tenancy in common. Talsky, 55 MLR 321.
700.18 700.18 Determination of cotenancy generally. Two or more persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are tenants in common, except as otherwise provided in s. 700.19 or ch. 766.
700.18 History History: 1991 a. 301.
700.18 Annotation A warranty deed to 2 grantees as “single persons" did not express an intent to classify the property as something other than survivorship marital property when the grantees subsequently married. The use of the phrase “single persons" simply described a fact: that at the time they purchased the vacant lot, the grantees were not married. “Single persons" does not represent a classification of property ownership of any kind, to wit, tenancy in common, joint tenancy, marital property, or any other recognized classification. Droukas v. Estate of Felhofer, 2014 WI App 6, 352 Wis. 2d 380, 843 N.W.2d 57, 13-0147.
700.18 Annotation Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
700.19 700.19 Creation of joint tenancy.
700.19(1)(1)Generally. The creation of a joint tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale. Any of the following constitute an expression of intent to create a joint tenancy: “as joint tenants", “as joint owners", “jointly", “ or the survivor", “with right of survivorship" or any similar phrase except a phrase similar to “survivorship marital property".
700.19(2) (2)Husband and wife. If persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are described in the document, instrument or bill of sale as husband and wife, or are in fact husband and wife, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument or bill of sale. This subsection applies to property acquired before January 1, 1986, and, if ch. 766 does not apply when the property is acquired, to property acquired on or after January 1, 1986.
700.19(2m) (2m)Domestic partners. If persons named as owners in a document of title, transferees in an instrument of transfer, or buyers in a bill of sale are described in the document, instrument, or bill of sale as domestic partners under ch. 770, or are in fact domestic partners under ch. 770, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument, or bill of sale.
700.19(3) (3)Comortgagees. If covendors owned realty as joint tenants and a purchase money mortgage names the covendors as mortgagees, the mortgagees are joint tenants, unless the purchase money mortgage expresses an intent that the mortgagees are tenants in common.
700.19(4) (4)Cofiduciaries. Notwithstanding s. 700.18 and subs. (1) to (3), co-personal representatives and cotrustees hold title to interests in property as joint tenants.
700.19(5) (5)Change in common law requirements. The common law requirements of unity of title and time for creation of a joint tenancy are abolished.
700.19 History History: 1971 c. 66; 1983 a. 186; 1991 a. 301; 2009 a. 28.
700.19 Annotation The common law requirement that a grantor cannot also be a grantee in a deed creating a joint tenancy is no longer the law in Wisconsin. Marchel v. Estate of Marchel, 2013 WI App 100, 349 Wis. 2d 707, 838 N.W.2d 97, 12-2131.
700.19 Annotation Nature of cotenancies and their taxation — death and gift. Sheedy, Sullivan, 56 MLR 3.
700.20 700.20 Extent of undivided interests in tenancy in common. The extent of the undivided interests of tenants in common for the duration of the tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale; if no intent is expressed in the document, instrument or bill of sale, tenants in common are presumed to own equal undivided interests for the duration of the tenancy.
700.20 History History: 1971 c. 66.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 184 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on March 28, 2020. Published and certified under s. 35.18. Changes effective after March 28, 2020, are designated by NOTES. (Published 3-28-20)