861.08 Proceeding for election; time limit.

(1) Generally. Except as the time may be extended under sub. (3), in order to make the election, the surviving spouse shall, within 6 months after the date of the decedent's death, do all of the following:

(a) File a petition for the election with whichever of the following applies:

1. The court that has jurisdiction of the probate proceedings relating to the decedent's estate if a judicial proceeding has been commenced.

2. The court that has jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence if no judicial proceeding has commenced.

(b) Mail or deliver a copy of the petition to the personal representative, if any, of the decedent's estate.

(2) Notification of interested parties. The surviving spouse shall give notice, in the manner provided in ch. 879, of the time and place set for hearing the petition to any persons who may be adversely affected by the election.

(3) Extension of time for election.

(a) Subject to par. (b), the court may grant the surviving spouse an extension for making an election if the surviving spouse petitions the court for an extension, gives notice as specified in sub. (2) and shows cause for an extension.

(b) The petition for extension of the time for making an election must be filed within 6 months after the decedent's death, unless the court finds all of the following:

1. That the surviving spouse was prevented from filing the action or naming a particular interested party for reasons beyond his or her control.

2. That failure to extend the time for making an election will result in hardship for the surviving spouse.

(4) Withdrawal of election. The surviving spouse may withdraw the petition for an election at any time before the probate court has entered the final determination of the distribution of the decedent's estate.

(5) Court determination of liability.

(a) After notice and hearing, the court shall determine the deferred marital property elective share amount and shall determine the property that satisfies that amount under ss. 861.06 and 861.07.

(b) If the personal representative does not hold the money or property included in the augmented deferred marital property estate, the court shall determine the liability of any person or entity that has any interest in the money or property or that holds that money or property.

(c) The surviving spouse may choose to seek relief from fewer than all recipients. However, any such action shall not cause any other recipient's liability to exceed the amount that he or she would have had to pay if all recipients had paid a prorated share.

(6) Suits authorized. An order or judgment of the court may be enforced in a suit for contribution or payment in other courts of this state or other jurisdictions.

History: 1997 a. 188.