Chapter 854

854.15(1) (1) Definitions. In this section:

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) (5) Exceptions.

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.

854.15(5)(am)2. 2. The express terms of a court order provide otherwise.

854.15(5)(am)3. 3. The express terms of a contract relating to the division of the decedent’s and former spouse’s property made between the decedent and the former spouse before or after the marriage or the divorce, annulment or similar event provide otherwise.

854.15(5)(am)4. 4. The divorce, annulment or similar event is nullified.

854.15(5)(am)5. 5. The decedent and the former spouse have remarried or entered into a new domestic partnership before the death of the decedent.

854.15(5)(bm) (bm) If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe the intent.

854.15(6) (6) Revocation of nontestamentary provision in marital property agreement. The effect of a judgment of annulment, divorce or legal separation on marital property agreements under s. 766.58 is governed by s. 767.375 (1).

854.15 History History: 1997 a. 188; 2005 a. 216; 2005 a. 443 s. 265; 2009 a. 28.

854.15 Annotation Retroactive application of sub. (3) (a) is constitutional. Allstate Life Insurance Co. v. Hanson, 200 F. Supp. 2d 1012 (2002).

854.15 Annotation New Probate Code Affects Estate Planning at Divorce. Hughes. Wis. Law. March 1999.

854.17 854.17 Marital property classification; ownership and division of marital property at death. Classification of the property of a decedent spouse and surviving spouse, and ownership and division of that property at the death of a spouse, are determined under ch. 766 and s. 861.01.

854.17 History History: 1985 a. 37; 1997 a. 188 s. 92; Stats. 1997 s. 854.17; 2005 a. 216, 387; 2009 a. 180.

854.18 854.18 Order in which assets apportioned; abatement.

854.18(1) (1) 

854.18(1)(a) (a) Except as provided in sub. (3) or in connection with the deferred marital property elective share amount of a surviving spouse who elects under s. 861.02, the share of a surviving spouse who takes under s. 853.12, or the share of a surviving child who takes under s. 853.25, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

854.18(1)(a)1. 1. If the governing instrument is a will, property subject to intestacy.

854.18(1)(a)2. 2. Residuary transfers or devises under the governing instrument.

854.18(1)(a)3. 3. General transfers or devises under the governing instrument.

854.18(1)(a)4. 4. Specific transfers or devises under the governing instrument.

854.18(1)(b) (b) For purposes of abatement, a general transfer or devise charged on any specific property or fund is a specific transfer to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, it is a general transfer to the extent of the failure or insufficiency.

854.18(2) (2) 

854.18(2)(a) (a) Abatement within each classification is in proportion to the amount of property that each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the governing instrument.

854.18(2)(b) (b) If the subject of a preferred transfer is sold or used incident to administration of an estate, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

854.18(3) (3) If the governing instrument expresses an order of abatement, or if the transferor’s estate plan or the purpose of the transfer, as expressed, implied, or construed through extrinsic evidence, would be defeated by the order of abatement under sub. (1), the shares of the distributees abate as necessary to give effect to the intention of the transferor.

854.18 History History: 1997 a. 188; 2005 a. 216.

854.19 854.19 Penalty clause for contest. A provision in a governing instrument that prescribes a penalty against an interested person for contesting the governing instrument or instituting other proceedings relating to the governing instrument may not be enforced if the court determines that the interested person had probable cause for instituting the proceedings.

854.19 History History: 1997 a. 188.

854.20 854.20 Status of adopted persons.

854.20(1) (1) Inheritance rights between adoptive person and adoptive relatives.

854.20(1)(a) (a) Subject to par. (b) and sub. (5), a legally adopted person is treated as a birth child of the person’s adoptive parents and the adoptive parents are treated as the birth parents of the adopted person for purposes of transfers at death to, through, and from the adopted person and for purposes of any statute or other rule conferring rights upon children, issue, or relatives in connection with the law of intestate succession or governing instruments.

854.20(1)(b) (b) Subject to sub. (5), par. (a) applies only if at least one of the following applies:

854.20(1)(b)1. 1. The decedent or transferor is the adoptive parent or adopted child.

854.20(1)(b)2. 2. The adopted person was a minor at the time of adoption.

854.20(1)(b)3. 3. The adoptive parent raised the adopted person in a parent-like relationship beginning on or before the child’s 15th birthday and lasting for a substantial period or until adulthood.

854.20(2) (2) Inheritance rights between adopted person and birth relatives.

854.20(2)(am) (am) Subject to sub. (5), a legally adopted person ceases to be treated as a child of the person’s birth parents and the birth parents cease to be treated as the parents of the child for the purposes specified in sub. (1) (a), except:

854.20(2)(am)1. 1. If the parent-child relationship between the child and one birth parent is replaced by adoption, but the relationship to the other birth parent is not replaced, then for all purposes the child continues to be treated as the child of the birth parent whose relationship was not replaced.

854.20(2)(am)2. 2.

854.20(2)(am)2.a. a. Subject to subd. 2. b. and c., if a birth parent of a child born to married parents dies and the other birth parent subsequently remarries and the child is adopted by the stepparent, the child continues to be treated as the child of the deceased birth parent for purposes of transfers at death through that parent and for purposes of any statute or other rule conferring rights upon children, issue or relatives of that parent under the law of intestate succession or governing instruments.

854.20(2)(am)2.b. b. Subd. 2. a. applies only if the adopted person was a minor at the time of adoption or if the adoptive parent raised the adopted person in a parent-like relationship beginning on or before the child’s 15th birthday and lasting for a substantial period or until adulthood.

854.20(2)(am)2.c. c. Subdivision 2. a. does not apply if the parental rights of the deceased birth parent had been terminated.

854.20(2)(bm) (bm) Subject to sub. (5), if an adopted child is subsequently adopted by another person, the former adoptive parent is considered to be a birth parent for purposes of this subsection.

854.20(5) (5) Contrary intent. If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe the intent.

854.20 History History: 1983 a. 447; 1993 a. 486; 1997 a. 188 ss. 96, 175; Stats. 1997 s. 854.20; 2005 a. 216.

854.21 854.21 Persons included in family groups or classes.

854.21(1) (1) Adopted persons.

854.21(1)(a) (a) Except as provided in sub. (7), a gift of property by a governing instrument to a class of persons described as “issue,” “lawful issue,” “children,” “grandchildren,” “descendants,” “heirs,” “heirs of the body,” “next of kin,” “distributees,” or the like includes a person adopted by a person whose birth child would be a member of the class, and issue of the adopted person, if the conditions for membership in the class are otherwise satisfied and at least one of the criteria under s. 854.20 (1) (b) 1., 2., and 3. is satisfied.

854.21(1)(b) (b) Except as provided in sub. (7), a gift of property by a governing instrument to a class of persons described as “issue,” “lawful issue,” “children,” “grandchildren,” “descendants,” “heirs,” “heirs of the body,” “next of kin,” “distributees,” or the like excludes a birth child and his or her issue otherwise within the class if the birth child has been adopted and would cease to be treated as a child of the birth parent under s. 854.20 (2).

854.21(2) (2) Individuals born to unmarried parents.

854.21(2)(a) (a) Subject to par. (b) and sub. (7), individuals born to unmarried parents are included in class gifts and other terms of relationship in accordance with s. 852.05.

854.21(2)(b) (b) In addition to the requirements of par. (a) and subject to the provisions of sub. (7), in construing a disposition by a transferor who is not the birth parent, an individual born to unmarried parents is not considered to be the child of a birth parent unless that individual lived while a minor as a regular member of the household of that birth parent or of that birth parent’s parent, brother, sister, spouse or surviving spouse.

854.21(3) (3) Relatives by marriage. Subject to sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by blood and relationships by marriage are construed to exclude relatives by marriage.

854.21(4) (4) Relatives of the half-blood. Subject to sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by the half-blood and relationships by the full-blood are construed to include both types of relationships.

854.21(5) (5) Posthumous issue. Subject to sub. (7), if a statute or governing instrument transfers an interest to a group of persons described as a class, such as “issue”, “children”, “nephews and nieces” or any other class, a person conceived at the time the membership in the class is determined and subsequently born alive is entitled to take as a member of the class if that person otherwise satisfies the conditions for class membership and survives at least 120 hours past birth.

854.21(6) (6) Person related through 2 lines. Subject to sub. (7), a person who is eligible to be a transferee under a statute or governing instrument through 2 lines of relationship is limited to one share, based on the relationship that entitles the person to the larger share.

854.21(7) (7) Contrary intent. If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe the intent.

854.21 History History: 1997 a. 188; 2005 a. 216.

854.22 854.22 Form of distribution for transfers to family groups or classes.

854.22(1) (1) Interests in heirs, next of kin and the like. Subject to sub. (4), if a statute or governing instrument specifies that a present or 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, the property passes to the persons, including the state, to whom it would pass and in the shares in which it would pass under the laws of intestacy of the designated individual’s domicile, as if the designated individual had died immediately before the transfer was to take effect in possession or enjoyment. If the designated individual’s surviving spouse is living and remarried when the transfer is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual.

854.22(2) (2) Transfers to descendants, issue and the like. Subject to sub. (4), if a statute or governing instrument creates a class gift in favor of a designated individual’s “descendants”, “issue” or “heirs of the body” the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment in the shares that they would receive under the laws of intestacy of the designated individual’s domicile, as if the designated individual had then died owning the subject matter of the class gift.

854.22(3) (3) Doctrine of worthier title abolished. The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor’s “heirs”, “heirs at law”, “next of kin”, “distributees”, “relatives” or “family”, or a term that has a similar meaning, does not create or presumptively create a reversionary interest in the transferor.

854.22(4) (4) Contrary intent. If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe the intent.

854.22 History History: 1997 a. 188; 2005 a. 216.

854.23 854.23 Protection of payers and other 3rd parties.

854.23(1) (1) Definition. In this section, “governing instrument” includes an instrument described in s. 854.01, a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m), a confirmation under s. 867.046 (2), or a recorded application under s. 867.046 (5).

854.23(2) (2) Liability depends on notice.

854.23(2)(a) (a) A payer or other 3rd party is not liable for having transferred property to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter. However, a payer or other 3rd party is liable for a payment made or other action taken after the payer or other 3rd party received written notice of a claimed lack of entitlement under this chapter.

854.23(2)(b) (b) Severance of a joint interest under the provisions of this chapter does not affect any 3rd-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship, unless a document declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property that are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

854.23(3) (3) Manner of notice. A claimant shall mail written notice of a claimed lack of entitlement under sub. (2) to the 3rd party’s main office or home by registered or certified mail, return receipt requested, or serve the claim upon the 3rd party in the same manner as a summons in a civil action.

854.23(4) (4) Deposit of property with court.

854.23(4)(a) (a) Upon receipt of written notice of a claimed lack of entitlement under this chapter, a 3rd party may transfer property held by it to the court having jurisdiction of the probate proceedings relating to the decedent’s estate. If no proceedings have been commenced, the transfer may be made to the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the property and, upon its determination of the owner, shall order disbursement in accordance with the determination.

854.23(4)(b) (b) Property transferred to the court discharges the 3rd party from all claims for the property.