Probate Family Allowance Requirements in Wisconsin

At a glance

Requirements one by one

The administration allowance

Section 861.31 lets the court order whatever payment it determines “necessary or appropriate” for the surviving spouse or domestic partner and the decedent's minor children during estate administration. The court weighs the probate estate's size, other support resources, the family's existing standard of living, and any other relevant factor.

The court may make a combined award to the spouse or partner for the family, or separate awards to that survivor and the children or their guardian. If there is no spouse or partner, the children or their guardian may receive the allowance. The initial order cannot exceed one year, but the court may extend it in additional periods of no more than one year each and may revise or terminate it at any time.

The need-tested special allowance

Section 861.35 creates a separate support layer for a testate or intestate estate. It may support the spouse or domestic partner and provide support and education for each minor child until a court-set age no later than 18. The court may set aside property and appoint a trustee to administer it.

This award is unavailable when probate or nonprobate transfers or another source already provides ample support. It is also unavailable for a child when a legally responsible surviving spouse or partner has ample means for the child's support and education in addition to personal support, or for a spouse or partner who has ample means. When setting an award, the court balances family need against creditor claims and considers estate size, other resources, living standard, marital-agreement hardship, and any other relevant factor.

Selected personal property and the separate exemption

Section 861.33 allows a spouse or domestic partner to file a written selection of apparel and personal-use jewelry, an automobile, household furniture, furnishings and appliances, and up to $3,000 in inventory value of other nonbusiness tangible personal property. The selection is expressly in addition to allowances and distributions. Specifically bequeathed items are generally excluded, but normal household items necessary to maintain the home remain selectable.

If claims may not be paid in full, a creditor may petition to limit transferred personal property to $5,000 aggregate inventory value until claims are paid or the court orders otherwise. Section 861.41 creates another, later protection: after claims are ascertained, a spouse or partner may petition for up to $10,000 in reasonably necessary property when the estate otherwise would not leave that amount in addition to selections and allowances.

Procedure, priority, and inheritance effect

Section 861.31 permits the court to act without notice or on whatever notice it directs. Both support layers require a court order; the personalty route instead begins with a filed written selection, while the $10,000 insolvency exemption requires a petition and necessity finding. Section 861.43 permits a conservator, guardian, guardian ad litem, or power-of-attorney agent to exercise the covered rights for the spouse or child.

Section 859.25 places the administration allowance, personalty selection, and special allowance in class (c). Only administration costs and reasonable funeral and burial expenses come first. The separate § 861.41 property assignment is lower, in class (g), immediately before all other allowed claims. No claim or allowance may receive a preference within its class.

The court may charge the § 861.31 allowance to income or principal, but it may not charge child support against the spouse's or partner's interest. Only the survivor's support portion may satisfy a premarital-will entitlement under § 853.12 or the deferred-marital-property election. Section 861.35 uses the same separation. The allowance sections state no general waiver rule; a marital property agreement instead appears as a hardship factor for the special award.

What trips people up

• Wisconsin has two support allowances. Section 861.31 covers the administration period; § 861.35 is a separate need-tested award that can fund a child's support and education to age 18.
• One year is not an absolute maximum. It caps each § 861.31 order period, and the court may grant additional one-year periods.
• The special allowance is not automatic. Ample probate or nonprobate provision, other support, or a survivor's ample means can bar it.
• The priority split matters. Sections 861.31, 861.33, and 861.35 are class (c), while § 861.41's separate insolvency assignment is class (g).
• Child support is protected from a survivor's inheritance charge. The court may apply the spouse's or partner's support portion toward named inheritance rights, but not the children's portion.

Common questions

May the court order the administration allowance without advance notice?

Yes. Section 861.31 expressly permits an order without notice or on notice the court directs. That does not turn the court-set amount into an automatic right; an order is still required.

What happens to property left in a special-allowance trust?

When a child dies or reaches 18, or the property is no longer needed for the covered support, the trustee distributes the remainder as the court orders under the will, intestacy, or toward unpaid estate claims.

Can a guardian or agent pursue the allowance for the survivor or child?

Yes. Section 861.43 authorizes a conservator, guardian, guardian ad litem, or power-of-attorney agent to exercise the applicable rights or apply for the allowances on that person's behalf.

Statutes and sources

• Wis. Stat. § 861.31 — administration allowance, claimants, notice, factors, duration, funding, and inheritance charge. The court may order an allowance it finds “necessary or appropriate.” Official certified Chapter 861 PDF (accessed 2026-08-03).
• Wis. Stat. § 861.33 — written selection of personal property, categorical items, $3,000 other-property cap, creditor's $5,000 aggregate limit, and transfer authority. Official current section tree (accessed 2026-08-03).
• Wis. Stat. § 861.35 — need-tested special allowance, child age ceiling, property trust, termination, factors, and inheritance effect. Official certified Chapter 861 PDF (accessed 2026-08-03).
• Wis. Stat. § 861.41 and § 861.43 — up-to-$10,000 insolvency assignment and representative authority. Official current section tree (accessed 2026-08-03).
• Wis. Stat. § 859.25 — class-(c) family provisions, class-(g) insolvency assignment, and no same-class preference. Official certified Chapter 859 PDF (accessed 2026-08-03).
• Wis. Stat. § 853.12 — premarital-will or predomestic-partnership share referenced by the allowance-offset rules. Official certified Chapter 853 PDF (accessed 2026-08-03).