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766.61(3)(a)2. 2. If after the issuance of a policy described under subd. 1. the insured or his or her spouse are at any time not domiciled in this state, the ownership interest and proceeds of the policy are mixed property. The marital property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the period during marriage that the policy was in effect and the denominator of which is the entire period that the policy was in effect.
766.61(3)(b) (b) The ownership interest and proceeds of a policy issued before the determination date which designates the insured as the owner are mixed property if a premium on the policy is paid from marital property after the determination date, regardless of the classification of property used to pay premiums on that policy after the initial payment of a premium on it from marital property. The marital property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the period during marriage that the policy was in effect after the date on which a premium was paid from marital property and the denominator of which is the entire period that the policy was in effect.
766.61(3)(c)1.1. Except as provided in subd. 2., the ownership interest and proceeds of a policy which designates the spouse of the insured as the owner are individual property of its owner, regardless of the classification of property used to pay premiums on the policy.
766.61(3)(c)2. 2. If after the issuance of a policy described under subd. 1. the insured or his or her spouse are at any time not domiciled in this state, the ownership interest and proceeds of the policy are individual property and property that is other than individual or marital property. The individual property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the entire period during which the policy was in effect less that period during which the insured or his or her spouse were at any time not domiciled in this state and the denominator of which is the entire period that the policy was in effect.
766.61(3)(d) (d) This chapter does not affect the ownership interest and proceeds of a policy that designates a person other than either spouse as the owner, if no premium on the policy is paid from marital property after the determination date. If a premium on the policy is paid from marital property after the determination date, the ownership interest and proceeds of the policy are in part property of the designated owner of the policy and in part marital property of the spouses, regardless of the classification of property used to pay premiums on that policy after the initial payment of a premium on it from marital property. The marital property component of the ownership interest and proceeds is the amount which results from multiplying the entire ownership interest and proceeds by a fraction, the numerator of which is the period during marriage that the policy was in effect after the date on which a premium was paid from marital property and the denominator of which is the entire period that the policy was in effect.
766.61(3)(e) (e) A written consent in which a spouse consents to the designation of another person as the beneficiary of the proceeds of a policy or consents to the use of property to pay premiums on a policy is effective, to the extent that the written consent provides, to relinquish or reclassify all or a portion of that spouse's interest in property used to pay premiums on the policy or in the ownership interest or proceeds of the policy without regard to the classification of property used by a spouse or another person to pay premiums on that policy. Unless the written consent expressly provides otherwise, a written consent under this paragraph is revocable in writing and is effective only with respect to the beneficiary named in it. Unless the written consent expressly provides otherwise, a revocation of a written consent is effective no earlier than the date on which it is signed by the revoking spouse and does not operate to reclassify any property which was reclassified or in which the revoking spouse relinquished an interest from the date of the consent to the date of revocation. In this paragraph, "ownership interest" includes the interests of a spouse in a policy who is not an owner under the policy.
766.61(3)(f) (f) Designation of a trust as the beneficiary of the proceeds of a policy with a marital property component does not by itself reclassify that component.
766.61(4) (4) This section does not affect a creditor's interest in the ownership interest or proceeds of a policy assigned to the creditor as security or payable to the creditor.
766.61(5) (5) The interest of a person as owner or beneficiary of a policy acquired under a decree or property settlement agreement incident to a prior marriage or to parenthood is not marital property, regardless of the classification of property used to pay premiums on that policy.
766.61(6) (6) This section does not affect the ownership interest or proceeds of a policy if neither spouse is designated as an owner in the policy or the policy issuer's records and no marital property is used to pay a premium on the policy.
766.61(7) (7) Except as provided in s. 854.14 (3m) (b) 2., if a noninsured spouse predeceases an insured spouse, the decedent spouse's marital property interest in a policy that designates the surviving spouse as the owner and insured 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 decedent spouse's date of death. All other rights of the decedent 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.
766.61(8) (8) This section does not apply to a policy held by a deferred employment benefit plan. Classification of a deferred employment benefit, regardless of the nature of the assets held by the deferred employment benefit plan, is determined under s. 766.62.
766.61 Note NOTE: 1991 Wis. Act 301, contains legislative council notes.
766.62 766.62 Classification of deferred employment benefits.
766.62(1)(1)
766.62(1)(a)(a) Except as provided in par. (b), a deferred employment benefit attributable to employment of a spouse occurring after the determination date is marital property.
766.62(1)(b) (b) A deferred employment benefit attributable to employment of a spouse occurring after the determination date is mixed property if, after the determination date and during the period of employment giving rise to the benefit, the employed spouse or his or her spouse are at any time not domiciled in this state. The marital property component of that mixed property is the amount which results from multiplying the entire benefit by a fraction, the numerator of which is the period of employment giving rise to the benefit that occurred after the determination date and during marriage and the denominator of which is the total period of employment giving rise to the benefit.
766.62(2) (2) A deferred employment benefit attributable to employment of a spouse occurring partly before and partly after the determination date is mixed property. The marital property component of that mixed property is the amount which results from multiplying the entire benefit by a fraction, the numerator of which is the period of employment giving rise to the benefit that occurred after the determination date and during marriage and the denominator of which is the total period of employment giving rise to the benefit.
766.62(2m) (2m) Unless provided otherwise in a decree or marital property agreement, a mixed property deferred employment benefit shall be valued as of a dissolution or an employee spouse's death.
766.62(3) (3) Ownership or disposition provisions of a deferred employment benefit plan which conflict with sub. (1) or (2) are ineffective between spouses or former spouses or between a surviving spouse and a person claiming under a deceased spouse's disposition at death.
766.62(4) (4)
766.62(4)(a)(a) If a deferred employment benefit plan administrator makes payments or takes actions in accordance with the plan and the administrator's records, the administrator is not liable because of those payments or actions.
766.62(4)(b) (b) If a deferred employment benefit plan administrator has reason to believe that a dispute exists as to the rights of parties, or their successors, to a deferred employment benefit, the deferred employment benefit plan administrator may do any of the following:
766.62(4)(b)1. 1. Deposit the benefit funds with a court having jurisdiction of the proceedings. The court shall hold the funds and, upon determination of the owner, shall order disbursement in accordance with the determination. Property deposited with the court discharges the deferred employment benefit plan administrator from all claims for the benefit funds.
766.62(4)(b)2. 2. Refuse to transfer any funds from the plan to any person until the administrator receives from a court written documentation that the dispute has been resolved.
766.62(4)(b)3. 3. Make a payment under par. (a).
766.62(4)(c) (c) The protection afforded a deferred employment benefit plan administrator under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of deferred employment benefits.
766.62(5) (5) Except as provided in s. 854.14 (3m) (c), if the nonemployee spouse predeceases the employee spouse, the marital property interest of the nonemployee spouse in all of the following terminates at the death of the nonemployee spouse:
766.62(5)(a) (a) A deferred employment benefit plan.
766.62(5)(b) (b) Assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan.
766.62 Note NOTE: 1991 Wis. Act 301, contains legislative council notes.
766.62 Annotation The termination under sub. (5) of a marital property interest in pension benefits did not prevent the application of the equitable principal that a murderer should not profit from the crime. The trial court acted properly in imposing a constructive trust on the decedent's marital property interest in the murderer's pension benefits. Estate of Hackl v. Hackl, 231 Wis. 2d 43, 604 N.W.2d 579 (Ct. App. 1999), 99-0499.
766.63 766.63 Mixed property.
766.63(1)(1) Except as provided otherwise in ss. 766.61 and 766.62, mixing marital property with property other than marital property reclassifies the other property to marital property unless the component of the mixed property which is not marital property can be traced.
766.63(2) (2) Application by one spouse of substantial labor, effort, inventiveness, physical or intellectual skill, creativity or managerial activity to either spouse's property other than marital property creates marital property attributable to that application if both of the following apply:
766.63(2)(a) (a) Reasonable compensation is not received for the application.
766.63(2)(b) (b) Substantial appreciation of the property results from the application.
766.63 History History: 1983 a. 186; 1985 a. 37; 1991 a. 301.
766.63 Annotation Marital property presumptions and tracing principals are applied. In Matter of Estate of Lloyd, 170 Wis. 2d 240, 487 N.W.2d 644 (Ct. App. 1992).
766.63 Annotation If tracing of the marital component of a mixed asset is established under sub. (1) reclassification does not occur. Instead, a claim for reimbursement exists in favor of the marital estate measured by the enhanced value of the asset, not the marital amounts expended. Estate of Kobylski, 178 Wis. 2d 158, 503 N.W.2d 369 (Ct. App. 1993).
766.63 Annotation Under sub. (2) a party who applies substantial uncompensated labor to property may not recover if there is no resulting substantial appreciation. Estate of Kobylski, 178 Wis. 2d 158, 503 N.W.2d 369 (Ct. App. 1993).
766.63 Annotation Expenditures that result in the mere maintenance of property, including the payment of property taxes, do not result in marital property being created through mixing. Krueger v. Rodenberg, 190 Wis. 2d 367, 527 N.W.2d 381 (Ct. App. 1994).
766.63 Annotation If a nonmarital asset is mixed with marital property, tracing the nonmarital property to its nonmarital source preserves the traced component's nonmarital status. There is no requirement that the party tracing the nonmarital component also trace the mixing of the marital component. That the marital property was used to satisfy a nonmarital debt against the property does not change the nonmarital character of the traceable property. Bille v. Zuraff, 198 Wis. 2d 867, 543 N.W.2d 568 (Ct. App. 1995), 95-0007.
766.63 Annotation What Part of Yours is Mine?: The Creation of a Marital Property Ownership Interest by Improving Nonmarital Property Under Wisconsin's Marital Property Law. Knauss. 2005 WLR 855.
766.70 766.70 Remedies.
766.70(1)(1) A spouse has a claim against the other spouse for breach of the duty of good faith imposed by s. 766.15 resulting in damage to the claimant spouse's property. Except as otherwise provided in sub. (6), no spouse may commence an action under this subsection later than 6 years after acquiring actual knowledge of the facts giving rise to the claim.
766.70(2) (2) Upon request of a spouse, a court may order an accounting of the spouses' property and obligations and may determine rights of ownership in, beneficial enjoyment of or access to marital property and the classification of all property of the spouses.
766.70(3) (3) Upon request of a spouse, a court may order the name of the spouse added to marital property or to a document evidencing ownership of marital property held in the name of the other spouse alone except with respect to any of the following:
766.70(3)(a) (a) An interest in a partnership or joint venture held by the other spouse as a general partner or as a participant.
766.70(3)(aL) (aL) An interest in a limited liability company held by the other spouse as a member.
766.70(3)(b) (b) An interest in a professional corporation, professional association or similar entity held by the other spouse as a stockholder or member.
766.70(3)(c) (c) An asset of an unincorporated business if the other spouse is the only one of the spouses involved in operating or managing the business.
766.70(3)(d) (d) A corporation, the stock of which is not publicly traded. Under this paragraph, stock of a corporation is publicly traded if both of the following apply:
766.70(3)(d)1. 1. The stock is traded on a national stock exchange or quoted on the national association of securities dealers automated quotations system.
766.70(3)(d)2. 2. The employees, officers and directors of the corporation own, in the aggregate, less than 10% in value of the outstanding shares of the stock in the corporation.
766.70(3)(e) (e) Any other property if the addition would adversely affect the rights of a 3rd person.
766.70(4) (4)
766.70(4)(a)(a) If marital property has been or is likely to be substantially injured by the other spouse's gross mismanagement, waste or absence, upon request of a spouse a court may order any of the following:
766.70(4)(a)1. 1. A temporary or permanent limitation or termination of any of the other spouse's management and control rights in marital property.
766.70(4)(a)2. 2. A change in classification of marital property.
766.70(4)(a)3. 3. A division of the obligations of the spouses existing on the date of the request, after considering the classification of the obligation under s. 766.55 and the factors specified under ss. 767.56 (1c) and 767.61.
766.70(4)(a)4. 4. That all obligations incurred after the court order are the obligations of the incurring spouse and that the other spouse is not liable for, and his or her property is not available to satisfy, the obligations.
766.70(4)(a)5. 5. That any property acquired by either spouse after the court order is the individual property of the acquiring spouse.
766.70(4)(b) (b) The court may make any order under this subsection subject to any equitable condition.
766.70(4)(c) (c) This subsection does not apply to property described in sub. (3) (a), (b), (d) and (e).
766.70(5) (5) When marital property is used to satisfy an obligation other than an obligation under s. 766.55 (2) (a) or (b), the nonobligated spouse may request the court to order that he or she receive as individual property marital property equal in value to the marital property used to satisfy the obligations of the obligated spouse, subject to the rights of any 3rd party who relied upon the availability of the marital property to satisfy any obligation under s. 766.55 (2) (a) or (b) and subject to equitable considerations. No person may bring an action under this subsection later than one year after the obligation is satisfied.
766.70(6) (6)
766.70(6)(a)(a) Except as provided in pars. (b) and (c), if a gift of marital property during marriage by a spouse does not comply with s. 766.53, the other spouse may bring an action to recover the property or a compensatory judgment equal to the amount by which the gift exceeded the limit under s. 766.53. The other spouse may bring the action against the donating spouse, the gift recipient or both. The other spouse must commence the action within the earliest of one year after he or she has notice of the gift, one year after a dissolution or on or before the deadline for filing a claim under s. 859.01 after the death of either spouse. If the recovery occurs during marriage, it is marital property. If the recovery occurs after a dissolution or the death of either spouse, the recovery is limited to 50% of the recovery that would have been available if the recovery had occurred during marriage.
766.70(6)(b)1.1. If a transfer of marital property to a 3rd person during marriage by a spouse acting alone becomes a completed gift upon the death of the spouse or if an arrangement during marriage involving marital property by a spouse acting alone is intended to be and becomes a gift to a 3rd person upon the death of the spouse, the surviving spouse may bring an action against the gift recipient to recover one-half of the gift of marital property. The surviving spouse may not commence an action under this paragraph later than one year after the death of the decedent spouse.
766.70(6)(b)2. 2. If the spouse entitled to a remedy under subd. 1. predeceases the donor spouse, no action may be commenced later than one year after the decedent's death. Except as provided in s. 766.61 (7), recovery in such an action is the same as if the donor spouse had predeceased the spouse entitled to recover, but is valued at the date of death of the spouse entitled to recover.
766.70(6)(c)1.1. If a spouse acting alone makes a gift of marital property to a 3rd person during marriage in the form of a joint tenancy and the spouse and the 3rd person are joint tenants with respect to that property, the other spouse has a right of reimbursement against the donor spouse or the gift recipient or both with respect to that portion of the gift representing the quotient resulting from dividing the number of joint tenants other than the donor spouse by the total number of joint tenants, including the donor spouse. The other spouse must commence the action within the earliest of one year after he or she has notice of the gift, one year after a dissolution or one year after the death of either spouse.
766.70(6)(c)2. 2. If the gift of marital property under subd. 1. remains in the form of a joint tenancy, at the death of the tenant spouse the surviving spouse has a right of reimbursement against the decedent spouse's estate or the gift recipient or both with respect to one-half of that portion of the joint tenancy representing the quotient resulting from dividing one by the total number of joint tenants immediately before the death of the tenant spouse, valued at the date of death. The surviving spouse may not commence the action later than one year after the death of the decedent spouse. If the spouse entitled to a right of reimbursement under this subdivision predeceases the tenant spouse, the action may not be commenced later than one year after the decedent's death. The portion subject to the right of reimbursement in such an action is the same as if the tenant spouse had predeceased the spouse with the right of reimbursement, but is valued at the date of death of the spouse with the right of reimbursement.
766.70(7) (7) After the date of death within 90 days after the earlier of either the receipt of the inventory listing any life insurance policy or deferred employment benefit plan covered by s. 766.61 or 766.62, or the discovery of the existence of such a policy or plan, the surviving spouse may purchase the decedent's interest in the policy or plan from the decedent's estate at the interest's fair market value at the date of death, if all or part of the policy or plan is included in the decedent spouse's estate.
766.70(8) (8) Except as provided in sub. (6) and ss. 766.55 (4m), 766.56 (2) (c) and 766.57, no decree issued under this section may adversely affect the interest of a 3rd party.
766.70 Annotation Intentional misrepresentation is a breach of the duty of good faith for which the exclusive pre-divorce remedy is s. 766.70 (1). Commencement of a divorce bars an action under this section. Gardner v. Gardner, 175 Wis. 2d 420, 499 N.W.2d 266 (Ct. App. 1993).
766.70 Annotation A divorce action terminates on the death of a spouse. After the death an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving disputes over marital property lies under this section. Socha v. Socha, 204 Wis. 2d 474, 555 N.W.2d 152 (Ct. App. 1996), 95-1641.
766.70 Annotation A cause of action under this section requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker-client relationship, does not fall within this section and may be maintained independent of the divorce. Knafelc v. Dain Bosworth, Inc. 224 Wis. 2d 346, 591 N.W.2d 611 (Ct. App. 1999), 98-0067.
766.70 Annotation Under sub. (6) (b) 11., when an improper gift of marital property during marriage becomes effective upon the death of the spouse, the action is against the gift's recipient and must be commenced within one year of the spouse's death. A demand for formal proceedings in the decedent's probate estate did not serve as the commencement of an action to enforce a marital property right to a nonprobate asset. Further, as a spouse's one-half interest in marital property is not subject to administration, even if the demand for formal administration could be called commencing an action, that "action" had nothing to do with asserting the surviving spouse's marital property interest. Joyce v. Joyce, 2008 WI App 92, 312 Wis. 2d 745, 754 N.W.2d 515, 07-1751.
766.73 766.73 Invalid marriages. If a marriage is invalidated by a decree, a court may apply so much of this chapter to the property of the parties to the invalid marriage as is necessary to avoid an inequitable result. This section does not apply if s. 767.61 applies to the action to invalidate the marriage.
766.73 History History: 1983 a. 186; 1985 a. 37; 2005 a. 443 s. 265.
766.75 766.75 Treatment of certain property at dissolution. After a dissolution each former spouse owns an undivided one-half interest in the former marital property as a tenant in common, except as provided otherwise in a decree or an agreement entered into by the former spouses after dissolution.
766.75 History History: 1983 a. 186; 1985 a. 37.
766.95 766.95 Rules of construction. Unless displaced by this chapter, the principles of law and equity supplement its provisions.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)