Wisconsin Intestacy Laws

The following are excerpts from Wisconsin’s intestacy laws. Please reference the full body of the Wisconsin Statutes at the site maintained by the Wisconsin State Legislature for any changes to those laws that may not be reflected below.

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Wisconsin Intestate Laws

851.002. Definitions
The definitions in ss. 851.01 to 851.31 apply to chs. 851 to 882.

851.05. Decedent
“Decedent” means the deceased person whose estate is subject to administration.

851.08. Domestic partner
“Domestic partner” has the meaning given in s. 770.01(1) and “domestic partnership” has the meaning given in s. 770.01(2).

851.09. Heir
“Heir” means any person, including the surviving spouse, who is entitled under the statutes of intestate succession to an interest in property of a decedent. The state is an heir of the decedent and a person interested under s. 45.51(10) and (11) when the decedent was a member of a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50 at the time of the decedent’s death.

851.11. Intestate succession
“Intestate succession” means succession to title to property of a decedent by reason of ch. 852, without regard to whether the property descends or is distributed.

851.13. Issue
“Issue” means children, grandchildren, great-grandchildren, and lineal descendants of more remote degrees, including those who occupy that relation by reason of adoption under s. 854.20 and nonmarital children and their lineal descendants to the extent provided by s. 852.05.

851.17. Net estate
“Net estate” means all property subject to administration less the property selected by the surviving spouse or surviving domestic partner under s. 861.33, the allowances made by the court under ss. 861.31, 861.35 and 861.41 except as those allowances are charged by the court against the intestate share of the recipient, administration, funeral and burial expenses, the amount of claims paid and federal and state estate taxes payable out of such property.

851.27. Property
“Property” means any interest, legal or equitable, in real or personal property, without distinction as to kind, including money, rights of a beneficiary under a contractual arrangement, choses in action, digital property, as defined in s. 711.03(10), and anything else that may be the subject of ownership.

851.295. Surviving domestic partner
“Surviving domestic partner” means a person who was in a domestic partnership under ch. 770 with the decedent, at the time of the decedent’s death.

851.30. Surviving spouse
(1) Subject to sub. (2),”surviving spouse” means a person who was married to the decedent at the time of the decedent’s death.
(2) “Surviving spouse” does not include any of the following:
(a) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, if the decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each other or they subsequently hold themselves out as husband and wife.
(b) An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a 3rd individual.
(c) An individual who was party to a valid proceeding concluded by an order purporting to terminate all property rights based on the marriage.

852.01. Basic rules for intestate succession
(1) Who Are Heirs. Except as modified by the decedent’s will under s. 852.10(1), any part of the net estate of a decedent that is not disposed of by will passes to the decedent’s surviving heirs as follows:
(a) To the spouse or domestic partner:
1. If there are no surviving issue of the decedent, or if the surviving issue are all issue of the surviving spouse or surviving domestic partner and the decedent, the entire estate.
2. If there are surviving issue one or more of whom are not issue of the surviving spouse or surviving domestic partner, one-half of decedent’s property other than the following property:
a. The decedent’s interest in marital property.
b. The decedent’s interest in property held equally and exclusively with the surviving spouse or surviving domestic partner as tenants in common.
(b) To the issue, per stirpes, the share of the estate not passing to the spouse or surviving domestic partner, under par. (a), or the entire estate if there is no surviving spouse or surviving domestic partner.
(c) If there is no surviving spouse, surviving domestic partner, or issue, to the parents.
(d) If there is no surviving spouse, surviving domestic partner, issue, or parent, to the brothers and sisters and the issue of any deceased brother or sister per stirpes.
(f) If there is no surviving spouse, surviving domestic partner, issue, parent, or issue of a parent, to the grandparents and their issue as follows:
1. One-half to the maternal grandparents equally if both survive, or to the surviving maternal grandparent; if both maternal grandparents are deceased, to the issue of the maternal grandparents or either of them, per stirpes.
2. One-half to the paternal relations in the same manner as to the maternal relations under subd. 1.
3. If either the maternal side or the paternal side has no surviving grandparent or issue of a grandparent, the entire estate to the decedent’s relatives on the other side.

(3) Escheat. If there are no heirs of the decedent under subs. (1) and (2), the net estate escheats to the state to be added to the capital of the school fund.

852.05. Status of child born to unmarried parents for purposes of intestate succession
(1) A child born to unmarried parents, or the child’s issue, is treated in the same manner as a child, or the issue of a child, born to married parents with respect to intestate succession from and through the child’s mother, and from and through the child’s father if any of the following applies:
(a) The father has been adjudicated to be the father in a paternity proceeding under ch. 767 or by final order or judgment of a court of competent jurisdiction in another state.
(b) The father has admitted in open court that he is the father.
(c) The father has acknowledged himself to be the father in writing signed by him.
(2) Property of a child born to unmarried parents passes in accordance with s. 852.01 except that the father or the father’s kindred can inherit only if the father has been adjudicated to be the father in a paternity proceeding under ch. 767 or by final order or judgment of a court of competent jurisdiction in another state or has been determined to be the father under s. 767.805 or a substantially similar law of another state.
(3)(a) This section does not apply to a child who becomes a marital child by the subsequent marriage of the child’s parents under s. 767.803.
(b) The status of a child born to unmarried parents who is legally adopted is governed by s. 854.20.
(4) Section 895.01(1) applies to paternity proceedings under ch. 767.

852.14. Inheritance by a parent who abandons a child
(1) In this section,”abandoned” means failed without cause to do all of the following for at least one year immediately before the death of a minor child:
(a) Communicate with the minor.





(b) Care for the minor as required by law or court order.
(c) Provide for the minor’s maintenance or support as required by law or court order.
(2)(a) A personal representative of a minor who died intestate who has actual knowledge or reasonable cause to believe that the minor was abandoned by a parent shall file a petition with the probate court with jurisdiction for a determination that the parent abandoned the child.
(b) Any interested person may file a petition with a probate court with jurisdiction for a determination that a parent of a minor who died intestate abandoned the minor.
(3) Notwithstanding s. 852.01(1), if a court determines that a parent abandoned his or her minor child and the child died intestate while a minor, the parent may not inherit from the child’s estate under s. 852.01 . If a parent is barred from inheriting from a child’s estate under this section, the child’s estate passes under s. 852.01 as if the parent predeceased the child.
(4) A parent who is barred from inheriting from a child’s estate under sub. (3) is not considered an heir of the child beginning on the date a court determined that the parent abandoned the child.

854.03. Requirement of survival by 120 hours
(1) Requirement Of Survival. Except as provided in sub. (5), if property is transferred to an individual under a statute or under a provision in a governing instrument that requires the individual to survive an event and it is not established that the individual survived the event by at least 120 hours, the individual is considered to have predeceased the event.

854.04. Representation; per stirpes; modified per stirpes; per capita at each generation; per capita
(1) By Representation or Per Stirpes.
(a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person” by representation,””by right of representation,” or “per stirpes,” the property is divided into equal shares for the designated person’s surviving children and for the designated person’s deceased children who left surviving issue. Each surviving child and each deceased child who left surviving issue are allocated one share.
(b) The share of each deceased child allocated a share under par. (a) is divided among that person’s issue in the same manner as under par. (a), repeating until the property is fully allocated among surviving issue.

854.21. Persons included in family groups or classes
(1) Adopted Persons.
(a) Except as provided in sub. (7), a gift of property by a governing instrument to a class of persons described as”issue,””lawful issue,””children,””grandchildren,””descendants,””heirs,””heirs of the body,””next of kin,””distributees,” or the like includes a person adopted by a person whose birth child would be a member of the class, and issue of the adopted person, if the conditions for membership in the class are otherwise satisfied and at least one of the criteria under s. 854.20(1) (b) 1., 2., and 3. is satisfied.
(b) Except as provided in sub. (7), a gift of property by a governing instrument to a class of persons described as”issue,””lawful issue,””children,””grandchildren,””descendants,””heirs,””heirs of the body,””next of kin,””distributees,” or the like excludes a birth child and his or her issue otherwise within the class if the birth child has been adopted and would cease to be treated as a child of the birth parent under s. 854.20(2).

(2) Individuals Born To Unmarried Parents.
(a) Subject to par. (b) and sub. (7), individuals born to unmarried parents are included in class gifts and other terms of relationship in accordance with s. 852.05.
(b) In addition to the requirements of par. (a) and subject to the provisions of sub. (7), in construing a disposition by a transferor who is not the birth parent, an individual born to unmarried parents is not considered to be the child of a birth parent unless that individual lived while a minor as a regular member of the household of that birth parent or of that birth parent’s parent, brother, sister, spouse or surviving spouse.

(3) Relatives By Marriage. Subject to sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by blood and relationships by marriage are construed to exclude relatives by marriage.

(4) Relatives Of The Half-Blood. Subject to sub. (7), terms of family relationship in statutes or governing instruments that do not differentiate between relationships by the half-blood and relationships by the full-blood are construed to include both types of relationships.

(5) Posthumous Issue. Subject to sub. (7), if a statute or governing instrument transfers an interest to a group of persons described as a class, such as”issue”,”children”,”nephews and nieces” or any other class, a person conceived at the time the membership in the class is determined and subsequently born alive is entitled to take as a member of the class if that person otherwise satisfies the conditions for class membership and survives at least 120 hours past birth.

(6) Person Related Through 2 Lines. Subject to sub. (7), a person who is eligible to be a transferee under a statute or governing instrument through 2 lines of relationship is limited to one share, based on the relationship that entitles the person to the larger share.

(7) Contrary Intent. If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe the intent.