Spousal Elective Share Requirements in Wisconsin

At a glance

Requirements one by one

Governing law and system

Wisconsin's election is narrower than a classic percentage of the probate or augmented estate. Subchapter II of chapter 861 applies only to the statutory category called deferred marital property. It combines that property on both sides of the marriage into an augmented deferred marital property estate.

This election sits beside, rather than replaces, ordinary marital-property ownership. Under § 861.01, the surviving spouse already retains an undivided one-half interest in each marital-property item, outside estate administration.

Eligible spouse and who may elect

Under § 861.02(7), the ordinary election is available to the surviving spouse when the decedent was domiciled in Wisconsin at death. Section 861.09 requires the spouse to be living when the election is filed. The spouse may file personally, or a conservator, guardian, guardian ad litem, or power-of-attorney agent may file on the spouse's behalf.

Share amount and marriage length

Section 861.02(1) authorizes an election of no more than 50% of the augmented deferred marital property estate. The statute does not impose a marriage- duration scale. Because 50% is a ceiling rather than a mandatory figure, a form that hard-codes exactly 50% is not neutral to the statutory choice.

Estate base and nonprobate transfers

The base is the total deferred marital property of both spouses, wherever acquired or located. Sections 861.03 and 861.04 apply matching inclusion rules to the decedent and the survivor.

On the decedent's side, the base reaches probate property, survivorship and payable- or transferable-on-death property, deferred employment benefits, IRAs, annuities, life-insurance proceeds, property subject to specified powers, and transfers with retained possession, enjoyment, income, designation, or amendment rights. It also reaches specified transfers within two years before death, including otherwise-uncovered gifts above $10,000 to one donee in either of those years.

Deductions, exclusions, and valuation

Under § 861.05, the exclusions cover transfers supported by consideration, Social Security transfers, transfers to others made with the other spouse's written joinder or consent, property passing to the spouse under the listed personal-property and exempt-property provisions, and a specified survivor-held employment-benefit category.

Valuation varies with the inclusion route: some assets are valued at death, some immediately before death, terminated interests when they terminate, and other recent gifts when transferred. The base is reduced by an equitable share of funeral, burial, administration, charge, fee, and enforceable-claim amounts. The same property is included only once, under the route producing the greatest value.

Deadline, extensions, and withdrawal

The petition is due six months after death under § 861.08. For an ordinary extension, the spouse must petition, notify adversely affected persons, and show cause; that request must itself be made within six months.

The court may consider a later extension only if the spouse was prevented from filing or naming a particular interested person for reasons beyond the spouse's control and denial would cause hardship. The spouse may withdraw the election until the probate court enters its final determination of estate distribution.

Filing, service, and court procedure

The spouse files a petition in the court handling the probate proceeding. If no judicial probate proceeding has begun, filing goes to the court with probate jurisdiction in the decedent's county of residence. A copy must be mailed or delivered to the personal representative, if one exists.

The spouse must give adversely affected persons notice under chapter 879 of the hearing's time and place. After notice and hearing, the court determines both the share amount and the property that satisfies it. Section 861.08 does not prescribe a notarized verification.

Waiver and agreement requirements

Section 861.10 permits whole or partial waiver before or after marriage, but it specifies two routes. Before death, the waiver must be in a marital property agreement enforceable under § 766.58. After death, it may be in a signed document filed with the proper court. Unless the waiver says otherwise, “all rights” or equivalent property-settlement language waives the deferred marital property elective share.

Payment sources and recipient liability

Under § 861.06, the survivor's own included deferred marital property and other marital, individual, deferred marital, or deferred individual property transferred to the survivor are credited first. Any remaining balance is charged proportionally to recipients of the main decedent-side inclusion categories, followed by recipients of the remaining two-year-transfer categories.

Under § 861.07, original recipients remain liable even if they no longer hold the property or proceeds. Later donees are liable if they still hold the property or proceeds, and can remain liable after disposing of them if they knew or should have known of the contribution duty. A liable person ordinarily may return the proportional property or pay its value, subject to a hardship-based court order changing the method.

Effect of election and other spousal rights

The election statute does not say that the spouse renounces the will. Instead, § 861.06 credits property already owned by or transferred to the spouse toward the elective amount. Under § 861.10, simply failing to elect is not a transfer or gift to the estate or other beneficiaries.

The separate § 861.01 ownership rule remains important: the spouse's undivided one-half interest in actual marital property is retained outside administration and is not the deferred-marital-property elective award.

What trips people up

• The 50% figure is a ceiling. Section 861.02 says “no more than 50 percent,” not that every petition must elect exactly 50%.
• The base includes both spouses' deferred marital property. Survivor-side property enters the augmented base and is also used first to satisfy the elected amount.
• Six months from death is the ordinary clock. It does not run from the inventory or personal-representative appointment.
• Waiver is not any signed prenup or postnup. The predeath route must be an enforceable § 766.58 marital property agreement; the separate signed-document route exists only after death and requires court filing.

Common questions

Is the survivor's existing marital-property half the elective share?

No. Section 861.01 confirms that half outside administration. The § 861.02 election separately concerns the augmented deferred marital property estate.

Are life insurance and beneficiary-designated assets always outside the base?

No. Section 861.03 includes the deferred-marital-property component of listed life-insurance proceeds, survivorship interests, payable- or transferable-on- death assets, and property subject to specified powers.

Can the spouse file after six months because an asset was discovered late?

Not automatically. A late extension requires findings that circumstances beyond the spouse's control prevented the filing or naming of a particular interested person and that refusing an extension would cause hardship.

Statutes and sources

• Wis. Stat. §§ 861.01 and 861.02 — existing marital-property ownership, maximum share, two-spouse base, and domicile. Official § 861.01 and official § 861.02 (accessed 2026-08-02).
• Wis. Stat. §§ 861.03 through 861.05 — decedent and survivor inclusions, nonprobate and two-year transfers, exclusions, valuation, expense reductions, and no double inclusion. Official § 861.03, official § 861.04, and official § 861.05 (accessed 2026-08-02).
• Wis. Stat. §§ 861.06 and 861.07 — satisfaction order, proportional contribution, recipient liability, and return-or-pay option. Official § 861.06 and official § 861.07 (accessed 2026-08-02).
• Wis. Stat. §§ 861.08 through 861.10 — six-month petition, notice, extensions, withdrawal, representative filing, and waiver. Official § 861.08, official § 861.09, and official § 861.10 (accessed 2026-08-02).
• Wis. Stat. § 766.58 — marital-property-agreement signatures and enforceability safeguards. Official § 766.58 (accessed 2026-08-16).