Estate Planning in Wisconsin

Married with children (same marriage)

Your spouse inherits the entire intestate estate — including all marital property and individual property.

Married with children from a prior relationship

Your spouse receives all marital property plus half of the decedent's non-marital property. Children from the prior relationship (and all other children) split the remaining half of non-marital property.

Married, no children

Your spouse inherits the entire intestate estate.

Single with children

Your children inherit everything equally by representation.

Single, no children

Your parents inherit equally. If no parents survive, siblings inherit by representation. The chain continues through grandparents and their descendants.

What makes a will valid

A will must be in writing, signed by the testator (or by another in the testator's conscious presence and at the testator's direction), and signed by at least two witnesses within a reasonable time after witnessing the signing or acknowledgment.

What people think

That Wisconsin is like every other Midwest state — a common law property state where the surviving spouse simply takes a fixed share.

What actually happens

Wisconsin is a marital property state — functionally identical to community property. The surviving spouse already owns half of all marital property. Your will controls only your half of marital property plus your individual property. This fundamentally changes how wills should be drafted compared to common law states.

Common failure

Not understanding the three-category property system: marital property (acquired during marriage), deferred marital property (pre-determination date), and individual property (gifts, inheritance, pre-marriage in some cases). Each category has different legal treatment at death.

When a trust is better

When managing the marital property/deferred marital property distinction, when avoiding probate for real property, when privacy matters, when managing property in multiple states, or when structuring distributions for minor children.

Execution checklist

1. Sign the will with two competent witnesses present — they may observe at different times
2. Execute a self-proving affidavit (one-step or two-step procedure)
3. If using remote witnessing, ensure an attorney supervises and completes the affidavit of compliance
4. Do NOT rely on a handwritten will — Wisconsin does not recognize holographic wills
5. Consider whether property is marital, deferred marital, or individual before drafting bequests

What it does

Grants authority to a named agent to manage financial, legal, and property affairs on your behalf.

Key rule

Wisconsin adopted the Uniform Power of Attorney for Finances and Property Act. The document must include durability language. Statutory form available.

Real-world friction

Financial institutions may reject POAs they consider outdated or non-standard. Using the Wisconsin statutory form reduces friction.

Common mistake

Confusing the financial POA with the power of attorney for health care. They are separate documents under separate statutes.

What it covers

Your preferences for life-sustaining treatment (declaration to health care professionals / living will) and the designation of a healthcare agent (power of attorney for health care).

What's different

Wisconsin uses two separate documents: the living will (Wis. Stat. Ch. 154) for treatment instructions, and the power of attorney for health care (Wis. Stat. Ch. 155) for agent designation. Both should be executed.

Execution requirements

The living will must be signed by the declarant and witnessed by two adults. The POA for health care must be signed by the principal, witnessed by two adults, and one witness must not be related by blood, marriage, or adoption.

Common misunderstanding

Assuming a living will alone is sufficient. Without a POA for health care, no one has clear legal authority to make decisions not covered by the living will's specific instructions.

When required

When assets are held solely in the decedent's name without beneficiary designation, survivorship rights, or trust.

What makes Wisconsin different

Wisconsin's probate system operates within a marital property framework that is unique in the country. The surviving spouse already owns half of all marital property — only the decedent's half passes through probate. The deferred marital property elective share (up to 50% of the augmented deferred marital property estate) adds another layer that doesn't exist in other states. The surviving spouse can also petition for assignment of the family home regardless of the will's provisions. Wisconsin offers both informal and formal probate, and a transfer-by-affidavit procedure for estates under $50,000.

Probate paths

What people get wrong

Not understanding that Wisconsin is a marital property state. Most people assume Wisconsin follows common law property rules like its neighbors (Illinois, Iowa, Minnesota). The marital property system fundamentally changes how assets are classified, who owns what, and what your will can actually control.

When a trust is useful

When managing the marital property/deferred marital property/individual property classification, when avoiding probate for real property, when privacy matters, when managing property in multiple states, or when the deferred marital property elective share needs to be managed strategically.

When a trust is unnecessary

Very small estates that qualify for the transfer-by-affidavit procedure, or straightforward estates where all property is marital property and the surviving spouse is the sole intended beneficiary.

Key mistake

Creating a trust but not properly characterizing assets as marital property, deferred marital property, or individual property within the trust. Misclassification can create unintended tax consequences and distribution errors.

Not understanding that Wisconsin is a marital property state

Wisconsin adopted community property by statute in 1986 — calling it 'marital property.' All property acquired during marriage is presumed to be marital property, owned equally by both spouses. Your will controls only your half. Most people assume Wisconsin follows common law property rules like its neighbors.

Confusing marital property with deferred marital property

Property acquired before the determination date (marriage, WI residency, or Jan 1 1986) is 'deferred marital property' — a unique category with its own elective share regime (up to 50% of the augmented deferred marital property estate). Mixing these categories creates classification disputes.

Missing the six-month deferred marital property election deadline

A surviving spouse must elect the deferred marital property share within six months of death. The court may grant an extension only if the petition for extension is also filed within the six months. Missing this deadline forfeits the right.

Relying on a holographic will

Wisconsin does not recognize holographic (unwitnessed handwritten) wills. Two witnesses are always required.

Assuming the will controls the family home

The surviving spouse can petition for assignment of the family home under § 861.21 — even if the will leaves it to someone else. The spouse must pay the estate for any value exceeding their share, but the home cannot be forced away from them.

Not keeping separate records for individual property

Wisconsin presumes all property is marital property. To maintain individual property status, you must rebut this presumption — which requires clear documentation. Commingling individual property with marital assets converts it.