If you die without a will in Wisconsin, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Wisconsin.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Wisconsin.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:
If you die with:
here's what happens:
|children but no spouse||children inherit everything|
|spouse but no children||spouse inherits everything|
|spouse and children who are all descendants from that spouse||spouse inherits everything|
|spouse and at least one child who is not a descendant of that spouse||spouse inherits 1/2 of your separate property
children inherit your share of the community property, plus 1/2 of your separate property
|parents but no spouse or children||parents inherit everything|
|siblings but no spouse, children, or parents||siblings inherit everything|
In Wisconsin, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property -- as separate property or community property. (In Wisconsin, community property is also called marital property.) Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.
If you want to learn more about how community property works, read Separate and Community Property During Marriage: Who Owns What?
Your spouse will inherit all of your community and separate property unless you have children or other descendants from a previous relationship. In that case, your spouse will not inherit your share of the community property. Instead, your spouse inherits only half of your separate property. Your descendants will inherit your share of community property, plus the other half of your separate property.
Even if you have descendants from a prior relationship, your spouse will have the right to inherit a home from you, if your spouse already lives there or intends to live there. The spouse may have to petition the court to claim this right and may be required to buy out any interest inherited by your descendants. (Wisconsin Statutes § 861.21.)
In Wisconsin, the rules for married people also apply to registered domestic partners.
If you die without a will in Wisconsin, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, and whether you have any children from other relationships. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of Wisconsin must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws yourself, you'll find a link to the Wisconsin statutes at the end of this article.
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.
Here are a few other things to know about Wisconsin intestacy laws.