Intestate Succession in Wisconsin

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.

Which Assets Pass by Intestate Succession

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:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

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.

Who Gets What 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:

The Spouse's Share in Wisconsin

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.

Children's Shares in Wisconsin

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.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. (Wisconsin Statutes § 854.20.)
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. (Wisconsin Statutes § 854.20.)
• Posthumous children. Children conceived by you but not born before your death will receive a share as long as they survive at least 120 hours after birth. (Wisconsin Statutes § 854.21.)
• Children born outside of marriage. If you were not married or in a registered domestic partnership with your children's mother when she gave birth to them, they may receive a share of your estate if you (1) you acknowledged your paternity in writing, (2) you admitted in court that you are the father, (3) or your paternity is otherwise established under Wisconsin law. (Wisconsin Statutes § 852.05.)
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. (Wisconsin Statutes § 854.04.)

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.

Will the State Get Your Property?

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.

Other Wisconsin Intestate Succession Rules

Here are a few other things to know about Wisconsin intestacy laws.

• Survivorship period. To inherit under Wisconsin's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. This law will not apply if it would result in the state taking your property. (Wisconsin Statutes § 854.03.)
• Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. (Wisconsin Statutes § § 852.03 and 854.21.)
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth. (Wisconsin Statutes § 854.21.)
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. However, there are special rules regarding the rights of these individuals to own real estate in Wisconsin. (Wisconsin Statutes §§ 852.03 and 710.02.)
• If someone kills you. Someone who "unlawfully and intentionally" kills you will usually not receive a share of your property. (Wisconsin Statutes § 854.14.)
• Advancements. If you gave a relative property during your lifetime, the value of this property is subtracted from your relative's share only if you stated this in writing at the time of making the gift or your relative admits it in writing. (Wisconsin Statutes § 854.09.)