861.02 Deferred marital property elective share amount.

(1) Amount. The surviving spouse has the right to elect an amount equal to no more than 50 percent of the augmented deferred marital property estate as determined under sub. (2).

(2) Augmented deferred marital property estate.

(a) If the presumption of marital property under s. 766.31 (2) is rebutted as to the classification of an asset or a portion thereof, the asset or portion is presumed to be deferred marital property.

(b) The augmented deferred marital property estate is the total value of the deferred marital property of the spouses, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction. It includes all types of property that fall within any of the following categories:

1. Probate and nonprobate transfers of the decedent's deferred marital property under s. 861.03 (1) to (3).

2. Decedent's gifts of deferred marital property made during the 2 years before the decedent's death under s. 861.03 (4).

3. Deferred marital property of the surviving spouse under s. 861.04.

(3) Calculation of property interests. Exclusions from the augmented deferred marital property estate, valuation of included property and reduction for expenses and claims are governed by s. 861.05.

(4) Satisfaction. Satisfaction of the augmented deferred marital property elective share amount is governed by ss. 861.06, 861.07, and 861.11, irrespective of where the property was acquired, where the property was located at the time of a relevant transfer, or where the property is currently located, including real property located in another jurisdiction.

(5) Proceedings. Proceedings for the election are governed by ss. 861.08 and 861.09.

(6) Waiver. Waiver of the deferred marital property elective share amount is governed by s. 861.10.

(7) Applicability of election.

(a) Unless the right has been waived under s. 861.10 or other limitations of this subchapter apply, the surviving spouse is eligible to make the election if at the time of the decedent's death the decedent is domiciled in this state.

(b) If a decedent who is not domiciled in this state owns real property in this state, the rights of the surviving spouse in that property are governed by s. 861.20.

(8) Effect if death caused by spouse. Section 854.14 (2) (c) and (3m) (d) applies to election of deferred marital property if the decedent's surviving spouse unlawfully and intentionally killed the decedent.

History: 1983 a. 186; 1985 a. 37 ss. 144, 145; Stats. 1985 s. 861.02; 1987 a. 393; 1991 a. 224, 301, 315; 1993 a. 213; 1997 a. 188; 2005 a. 216.

NOTE: 1991 Wis. Act 301 contains legislative council notes.

Deferred marital property under sub. (1) is property subject to administration for all purposes, including the payment of claims under s. 879.63. In Matter of Estate of Moccero, 168 Wis. 2d 313, 483 N.W.2d 310 (Ct. App. 1992).

Wisconsin's New Deferred Marital Property Election. Erlanger. Wis. Law. April 1999.