861.05 Augmented deferred marital property estate: calculation of property interests.

(1) Exclusions. The following are not included in the augmented deferred marital property estate:

(a) Transfers of deferred marital property to the extent that the decedent received full or partial consideration for the transfer in money or money's worth.

(b) Transfers under the U.S. social security system.

(c) Transfers of deferred marital property to persons other than the spouse who did not make the transfer, with the written joinder or written consent of that spouse.

(d) Transfers of deferred marital property to the surviving spouse under s. 861.33 or 861.41.

(e) The deferred marital property component of any deferred employment benefit plan, or of assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, held by the surviving spouse that would have terminated under s. 766.62 (5) had it been marital property.

(2) Valuation of decedent's property and transfers.

(a) Property included in the augmented deferred marital property estate under s. 861.03 (1), (2) (c) and (4) (b) 2. is valued as of the date of the decedent spouse's death.

(b) Property included under s. 861.03 (2) (a), (b) and (d) and (3) is valued immediately before the decedent spouse's death.

(c) Property included under s. 861.03 (4) (b) 1. is valued as of the date that the right, interest or power terminated.

(d) Property included under s. 861.03 (4) (b) 3. is valued as of the date of the transfer.

(e) If deferred marital property is commingled with other types of property but the deferred marital property component can be identified, only that component is valued.

(f) The value of property included in the augmented deferred marital property estate includes the commuted value of any present or future interest in deferred marital property and the commuted value of deferred marital property payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan or any similar arrangement.

(2m) Valuation of surviving spouse's property and transfers. The surviving spouse's property included in the augmented deferred marital property estate under s. 861.04 (1) is valued in the same manner as the decedent spouse's property included in the augmented deferred marital property estate is valued under sub. (2), subject to the following:

(a) The surviving spouse shall be treated as having died after the decedent on the date of the decedent's death notwithstanding the 120-hour survival requirement under s. 854.03 (1).

(b) Life insurance on the surviving spouse's life shall have the value of the deferred marital property component of the interpolated terminal reserve and the unused portion of the term premium of the policy as of the date of the decedent's death.

(3) Reduction for equitable proportion of expenses and enforceable claims. The value of deferred marital property included in the augmented deferred marital property estate under s. 861.03 or 861.04 shall be reduced by an equitable proportion of funeral and burial expenses, administrative expenses, other charges and fees and enforceable claims.

(4) Overlapping application; no double inclusion. If the same property could be included in the augmented deferred marital property estate under more than one provision of s. 861.03 or 861.04, the property is included only once, and it is included under the provision that yields the greatest value.

History: 1985 a. 37; 1991 a. 301; 1997 a. 188; 2005 a. 216.

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