Surviving spouse rights in Wisconsin include:
- Intestate share
- Marital Property Rights
- Family Allowance
- Special Allowance
It is important to learn your widow’s rights as the first step in the probate process.
Surviving Spouse Rights in Wisconsin When There Is No Valid Will
If a decedent dies without a will in Wisconsin, they have died intestate. The laws of Wisconsin will control the disposition of the decedent’s estate. The surviving spouse’s share depends on the other survivors of decedent.
- Surviving Spouse Only: If the decedent is only survived by the surviving spouse, the all property goes to the spouse.
- Surviving Spouse and Shared Children: If the decedent is survived by the surviving spouse and children that are all children of the decedent and surviving spouse, the surviving spouse receives all of the marital and separate property.
- Surviving Spouse and Other Children: If decedent had children not shared with the surviving spouse, then the surviving spouse receives 1/2 of decedent’s property that is neither “marital property” nor held equally with the spouse as tenants in common, and the children receive decedent’s share of the marital property and 1/2 of the separate property.
See Wisconsin Statute section 852.01. To learn more about intestate succession under Wisconsin law, read Who Are Next of Kin In Wisconsin.
Marital Property State By Default – Deferred Marital Property
Although Wisconsin is not officially a community property state, it is a marital property state by default. The law presumes that all property of the spouses is marital property. “Marital property” can be reclassified as individual property by written agreement. Having such a written agreement would remove such property from marital property treatment.
A surviving spouse has the right to an elective share of up to 50% of the decedent’s augmented deferred marital property estate (if not all property is marital property). Wis. Stat. § 861.02.
The augmented deferred marital property estate is the total value of the deferred marital property of both spouses. It includes decedent’s deferred marital property passing by probate and non probate transfers, decedent’s gifts of deferred marital property made during two years before decedent’s death, and the spouse’s deferred marital property.
Allowances and Exemptions
Wisconsin law provides for certain allowances and exemptions for the surviving spouse. These rights include:
- Family Allowance: A surviving spouse may receive a family allowance during the administration of the estate, in the court’s discretion. The allowance is permitted for up to one year, and for additional one-year periods. Wisconsin Statute section 861.31.
- Special Allowance: A surviving spouse may also receive a special allowance for support if the surviving spouse lacks ample means to provide for himself or herself. Wisconsin Statute section 861.35.
- Exempt Property: If the estate is insolvent, the surviving spouse may petition the court to set aside exempt property of a value not exceeding $10,000. Wisconsin Statute section 861.41.
- Personal Property: The surviving spouse may select items of personal property other than certain items specifically bequeathed if all claims are paid in full, or otherwise election is limited to $5,000 in value. Wisconsin Statute section 861.33.