Wi Property

Disclaimer of Property Interest-Wisconsin

Wisconsin Statutes

Probate

CHAPTER 854 - TRANSFERS AT DEATH

GENERAL RULES

Disclaimer.

Chap. 854, §854.13

(1) Definitions. In this section:

Chap. 854, §854.13(1)

(a) "Beneficiary under a governing instrument" includes any person who receives or might receive property under the terms or legal effect of a governing instrument.

Chap. 854, §854.13(1)(a)

(c) "Power" has the meaning given in s. 702.01 (4).

Chap. 854, §854.13(1)(c)

(2) Right to disclaim.

Chap. 854, §854.13(2)

(a) In general. A person who is an heir, recipient of property or beneficiary under a governing instrument, donee of a power created by a governing instrument, appointee under a power exercised by a governing instrument, taker in default under a power created by a governing instrument or person succeeding to disclaimed property may disclaim any property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.

Chap. 854, §854.13(2)(a)

(b) Joint tenants. Upon the death of a joint tenant, a surviving joint tenant may disclaim any property that would otherwise accrue to him or her by right of survivorship and that is the subject of the joint tenancy by delivering a written instrument of disclaimer under this section.

Chap. 854, §854.13(2)(b)

(c) Survivorship marital property. Upon the death of a spouse, the surviving spouse may disclaim the decedent spouse's interest in survivorship marital property.

Chap. 854, §854.13(2)(c)

(d) Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by a governing instrument or by the exercise of a power may not be made if partial disclaimer is expressly prohibited by the governing instrument or by the instrument exercising the power.

Chap. 854, §854.13(2)(d)

(e) Spendthrift provision. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

Chap. 854, §854.13(2)(e)

(f) Disclaimer by guardian or conservator. A guardian of the estate or a conservator appointed under ch. 880 may disclaim on behalf of his or her ward, with court approval, if the ward is entitled to disclaim under this section.

Chap. 854, §854.13(2)(f)

(g) Disclaimer by agent under power of attorney. An agent under a power of attorney may disclaim on behalf of the person who granted the power of attorney if all of the following apply:

Chap. 854, §854.13(2)(g)

1. The person who granted the power of attorney is entitled to disclaim under this section.

Chap. 854, §854.13(2)(g)1.

2. The power of attorney specifically grants the power to disclaim.

Chap. 854, §854.13(2)(g)2.

(h) After death. A person's right to disclaim survives the person's death and may be exercised by the person's personal representative or special administrator upon receiving approval from the court having jurisdiction of the person's estate after hearing upon notice to all persons interested in the disclaimed property, if the personal representative or special administrator has not taken any action which would bar the right to disclaim under sub. (11).

Chap. 854, §854.13(2)(h)

(3) Instrument of disclaimer. The instrument of disclaimer shall do all of the following:

Chap. 854, §854.13(3)

(a) Describe the property disclaimed.

Chap. 854, §854.13(3)(a)

(b) Declare the disclaimer and the extent of the disclaimer.

Chap. 854, §854.13(3)(b)

(c) Be signed by the disclaimant.

Chap. 854, §854.13(3)(c)

(d) Be delivered within the time and in the manner provided under subs.(4) and (5).

Chap. 854, §854.13(3)(d)

(4) Time for effective disclaimer.

Chap. 854, §854.13(4)

(a) Present interest. An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the effective date of the transfer under the governing instrument. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.

Chap. 854, §854.13(4)(a)

(b) Future interest. An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property is finally ascertained and his or her interest indefeasibly fixed. For cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court considers just.

Chap. 854, §854.13(4)(b)

(c) Future right to income or profits. Notwithstanding pars. (a) and (b), an instrument disclaiming the future right to receive mandatory distributions of income or profits from any source may be executed and delivered at any time.

Chap. 854, §854.13(4)(c)

(d) Persons under 21. Notwithstanding pars. (a) and (b), a person under 21 years of age may disclaim at any time not later than 9 months after the date on which the person attains 21 years of age.

Chap. 854, §854.13(4)(d)

(e) Interests arising by disclaimer. Notwithstanding pars. (a) and (b), a person whose interest in property arises by disclaimer or by default of exercise of a power created by a governing instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date of death of the donee of the power.

Chap. 854, §854.13(4)(e)

(5) Delivery and filing of disclaimer.

Chap. 854, §854.13(5)

(a) Delivery. In addition to any requirements imposed by the governing instrument, the instrument of disclaimer is effective only if, within the time specified under sub. (4), it is delivered to and received by any of the following:

Chap. 854, §854.13(5)(a)

1. The transferor of the property disclaimed, if living.

Chap. 854, §854.13(5)(a)1.

2. The personal representative or special administrator of the deceased transferor of the property.

Chap. 854, §854.13(5)(a)2.