859.18 Satisfaction of obligations at death of a spouse.

(1) In this section:

(a) “Credit" means the right granted by a creditor to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment for the property or services.

(b) “Creditor" means a person who regularly extends credit.

(2) At the death of a spouse, property, including the proceeds of or property exchanged for that property, that but for the death of the spouse would have been available under s. 766.55 (2) for satisfaction of an obligation continues to be available for satisfaction, except as provided in subs. (3) to (5).

(3) Unless the obligation resulted from an extension of credit or from a tax obligation to this state, upon the death of a spouse who was the only obligated spouse under s. 766.55 (2) (a) or the only incurring spouse under s. 766.55 (2) (b) to (d):

(a) No income of the surviving spouse is available for satisfaction of an obligation described under s. 766.55 (2).

(b) Marital property of the surviving spouse, if otherwise available for satisfaction of an obligation described under s. 766.55 (2), is available to the extent of the value of the marital property at the death of the decedent spouse.

(4)

(a) If the decedent spouse was the only obligated spouse under s. 766.55 (2) (a) or the only incurring spouse under s. 766.55 (2) (b) to (d), the following property is not available for satisfaction of the obligation:

1. Survivorship marital property, except as provided in s. 766.60 (5) (b) and (c).

2. Joint tenancy property in which the decedent spouse was a tenant, subject to any judgment lien on which execution was issued before the spouse's death.

3. Deferred employment benefits arising from the decedent spouse's employment.

4. Proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent's estate and not assigned to the creditor as security or payable to the creditor.

(b) If the surviving spouse is the only obligated spouse under s. 766.55 (2) (a) or the only incurring spouse under s. 766.55 (2) (b) to (d), the following property transferred to a person other than the surviving spouse is not available for satisfaction:

1. The decedent's interest in joint tenancy property, subject to any judgment lien on which execution was issued before the decedent's death.

2. Deferred employment benefits arising from the employment of the decedent spouse.

3. The proceeds of a life insurance policy insuring the life of the decedent spouse, if the proceeds are not payable to the decedent's estate and not assigned to the creditor as security or payable to the creditor.

(5) If otherwise available under this section to satisfy an obligation under s. 766.55 (2):

(a) The availability of a trust described under s. 701.0505 (1) is subject to s. 701.0505 (1).

(b) The availability of a spendthrift trust described under subch. V of ch. 701 is subject to subch. V of ch. 701.

(c) The availability of an account governed under subch. I of ch. 705 is subject to s. 705.07.

(6) A provision in a marital property agreement, as defined under s. 766.01 (12), which provides for the disposition of either or both spouses' property upon the death of a spouse does not affect property available under this section for satisfaction unless that property was not available for satisfaction under the marital property agreement while both spouses were alive and the agreement is binding on the creditor under s. 766.55 (4m) or 766.56 (2) (c).

History: 1985 a. 37; 1989 a. 331; 1991 a. 301; 2013 a. 92.

NOTE: 1985 Wis. Act 37 and 1991 Wis. Act 301 contain explanatory notes.