Wisconsin Statutes 861.35 – Special allowance for support of spouse or domestic partner and support and education of minor children
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Terms Used In Wisconsin Statutes 861.35
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Decedent: A deceased person.
- Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
- 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
- Intestate: Dying without leaving a will.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Minor: means a person who has not attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "minor" does not include a person who has attained the age of 17 years. See Wisconsin Statutes 990.01
- Probate: Proving a will
- Property: includes real and personal property. See Wisconsin Statutes 990.01
- Testate: To die leaving a will.
- Trustee: A person or institution holding and administering property in trust.
(1m) If the decedent is survived by a spouse, domestic partner, or by minor children, the court may order an allowance for the support and education of each minor child until he or she reaches a specified age, not to exceed 18, and for the support of the spouse or domestic partner. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse or domestic partner, the court also may allot directly to the minor children household furniture, furnishings, and appliances. The court may not order an allowance under this section if any of the following applies:
(a) The decedent has amply provided for each minor child and for the spouse or domestic partner by the transfer of probate or nonprobate assets, or support and education have been provided for by any other means.
(b) In the case of minor children, the surviving spouse or surviving domestic partner is legally responsible for support and education and has ample means to provide them in addition to his or her own support.
(c) In the case of the surviving spouse or surviving domestic partner, he or she has ample means to provide for his or her support.
(2) The court may set aside property to provide an allowance and may appoint a trustee to administer the property, subject to the continuing jurisdiction of the court. If a child dies or reaches the age of 18, or if at any time the property held by the trustee is no longer required for the support of the spouse or domestic partner or the support and education of the minor child, any remaining property is to be distributed by the trustee as the court orders in accordance with the terms of the decedent’s will or to the heirs of the decedent in intestacy or to satisfy unpaid claims of the decedent’s estate.
(3) In making an allowance under this section, the court shall consider all of the following:
(a) The effect on claims under s. 859.25. The court shall balance the needs of the spouse, domestic partner, or minor children against the nature of the creditors’ claims in setting the amount allowed under this section.
(b) The size of the estate.
(c) Other resources available for support.
(d) The existing standard of living.
(e) Whether the provisions of a marital property agreement will create a hardship for the surviving spouse.
(f) Any other factors that the court considers relevant.
(4) The court may order that the allowance to the surviving spouse or surviving domestic partner, not including any allowance for the support and education of minor children, be applied in satisfaction of any of the following:
(a) Any entitlement of the surviving spouse or surviving domestic partner under s. 853.12.
(b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02 (1).