Wisconsin Statutes 861.05 – Augmented deferred marital property estate: calculation of property interests
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Terms Used In Wisconsin Statutes 861.05
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Contract: A legal written agreement that becomes binding when signed.
- Decedent: A deceased person.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Property: includes real and personal property. See Wisconsin Statutes 990.01
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
(1) Exclusions. The following are not included in the augmented deferred marital property estate:
(a) Transfers of deferred marital property to the extent that the decedent received full or partial consideration for the transfer in money or money’s worth.
(b) Transfers under the U.S. social security system.
(c) Transfers of deferred marital property to persons other than the spouse who did not make the transfer, with the written joinder or written consent of that spouse.
(e) The deferred marital property component of any deferred employment benefit plan, or of assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan, held by the surviving spouse that would have terminated under s. 766.62 (5) had it been marital property.
(2) Valuation of decedent’s property and transfers.
861.05(2)(a) (a) Property included in the augmented deferred marital property estate under s. 861.03 (1), (2) (c) and (4) (b) 2. is valued as of the date of the decedent spouse’s death.
(b) Property included under s. 861.03 (2) (a), (b) and (d) and (3) is valued immediately before the decedent spouse’s death.
(c) Property included under s. 861.03 (4) (b) 1. is valued as of the date that the right, interest or power terminated.
(d) Property included under s. 861.03 (4) (b) 3. is valued as of the date of the transfer.
(e) If deferred marital property is commingled with other types of property but the deferred marital property component can be identified, only that component is valued.
(f) The value of property included in the augmented deferred marital property estate includes the commuted value of any present or future interest in deferred marital property and the commuted value of deferred marital property payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan or any similar arrangement.
(2m) Valuation of surviving spouse’s property and transfers. The surviving spouse’s property included in the augmented deferred marital property estate under s. 861.04 (1) is valued in the same manner as the decedent spouse’s property included in the augmented deferred marital property estate is valued under sub. (2), subject to the following:
(a) The surviving spouse shall be treated as having died after the decedent on the date of the decedent’s death notwithstanding the 120-hour survival requirement under s. 854.03 (1).
(b) Life insurance on the surviving spouse’s life shall have the value of the deferred marital property component of the interpolated terminal reserve and the unused portion of the term premium of the policy as of the date of the decedent’s death.
(3) Reduction for equitable proportion of expenses and enforceable claims. The value of deferred marital property included in the augmented deferred marital property estate under s. 861.03 or 861.04 shall be reduced by an equitable proportion of funeral and burial expenses, administrative expenses, other charges and fees and enforceable claims.
(4) Overlapping application; no double inclusion. If the same property could be included in the augmented deferred marital property estate under more than one provision of s. 861.03 or 861.04, the property is included only once, and it is included under the provision that yields the greatest value.