In Wisconsin, a person who dies without a will is said to have died intestate. The decedent's estate will be administered according to Wisconsin statute. The share of the surviving spouse is determined by the decedent's other survivors.
Surviving Spouse Only: If only the surviving spouse survives the decedent, the spouse receives all of the property.
Survivor Spouse and Shared Children: If the decedent is survived by a surviving spouse and children who are both decedent and surviving spouse's children, the surviving spouse is entitled to all marital and separate property.
If the decedent had children that were not shared with the surviving spouse, the surviving spouse receives 1/2 of the decedent's property that is not "marital property" or owned jointly with the spouse as tenants in common, and the children receive 1/2 of the marital property and 1/2 of the separate property.
Section 852.01 of the Wisconsin Statutes applies.
Deferred Marital Property is the default marital property state
Wisconsin is a marital property state by default, despite the fact that it is not officially a community property state. The law presumes that both spouses' property is marital property.
By written agreement, “marital property” may be reclassified as individual property. Such property would be exempt from marital property care if there was a formal agreement in place.
A surviving spouse is entitled to an elective share of the decedent's enhanced deferred marital property estate of up to 50%. (if not all property is marital property).
The cumulative value of both partners' deferred marital property estate is referred to as the enhanced deferred marital property estate. It involves the decedent's deferred marital property that passes through probate and non-probate transactions, as well as the decedent's gifts of deferred marital property made within two years of the decedent's death.
Exemptions and Allowances
The surviving spouse is entitled to such allowances and exemptions under Wisconsin law. These privileges include the following:
Family Allowance: At the discretion of the court, a surviving spouse can receive a family allowance while the estate is being administered. The credit can be used for up to one year and can be renewed for another one-year term.
Special Allowance: If the surviving spouse may not have sufficient means to support himself or herself, he or she might be eligible for a special allowance.
If the estate is insolvent, the surviving spouse may petition the court to set aside exempt property valued at less than $10,000.
Personal Property: If all claims are paid in full, the surviving spouse will choose pieces of personal property other than those expressly bequeathed; otherwise, the election is limited to $5,000 in value.
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To learn about “Surviving Spouse’s Rights in Illinois Probate: Surviving Spouse Award and Renunciation of The Will,” click here.
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