861.33 Selection of personalty by surviving spouse or surviving domestic partner.

(1)

(a) Subject to this section, in addition to all allowances and distributions, the surviving spouse or surviving domestic partner may file with the court a written selection of the following personal property, which shall then be transferred to the spouse or domestic partner by the personal representative:

1. Wearing apparel and jewelry held for personal use by the decedent or the surviving spouse or surviving domestic partner;

2. Automobile;

3. Household furniture, furnishings and appliances; and

4. Other tangible personalty not used in trade, agriculture or other business, not to exceed $3,000 in inventory value.

(b) The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse or surviving domestic partner may in every case select the normal household furniture, furnishings, and appliances necessary to maintain the home. For this purpose antiques, family heirlooms, and collections that are specifically bequeathed are not classifiable as normal household furniture or furnishings.

(2) If it appears that claims may not be paid in full, the court may, upon petition of any creditor, limit the transfer of personalty to the spouse under this section to items not exceeding $5,000 in aggregate inventory value until the claims are paid in full or the court otherwise orders, or the court may require the spouse to retransfer property in excess of $5,000 or, at the option of the spouse, pay the excess in value over this amount.

(3) The surviving spouse may select items not specifically bequeathed of the type specified under sub. (1) (a) 4. exceeding in value the $3,000 limit or obtain the transfer of items exceeding the limit set by the court under sub. (2), by paying to the personal representative the excess of inventory value over the respective limit.

(4) The personal representative has power, without court order, to execute appropriate documents to effect transfer of title to any personal property the spouse selects under this section. A person may not question the validity of the documents of transfer or refuse to accomplish the transfer on the grounds that the personal representative is also the surviving spouse of the decedent.

History: 1973 c. 233; 1983 a. 192; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.

This section is constitutional. In Matter of Estate of Eisenberg, 90 Wis. 2d 620, 280 N.W.2d 359 (Ct. App. 1979).