Wisconsin Estate Planning Considerations
Community Property State
There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska is an opt-in community property state that gives both parties the option to make their property community property.
Domicile is a person’s legal permanent residence and may not be where they currently live. For those in the military, people who have homes in several states, or those who have moved frequently, figuring out which state is their proper domicile is critical.
I.R.S. Publication 555 provides guidance and states that generally, community property is property:
- That you, your spouse, or both acquire during your marriage while you and your spouse are domiciled in a community property state.
- That you and your spouse agreed to convert from separate to community property.
- That cannot be identified as separate property.
Guidance is also given regarding what is considered separate property:
- Property that you or your spouse owned separately before your marriage.
- Money earned while domiciled in a noncommunity property state.
- Property that you or your spouse received separately as a gift or inheritance during your marriage.
- Property that you or your spouse bought with separate funds or acquired in exchange for separate property during your marriage.
- Property that you and your spouse converted from community property to separate property through an agreement valid under state law.
- The property was bought with separate funds if part was bought with community funds and part with separate funds.
A premarital agreement is an agreement that may change the result of the property division.
Last Will and Testament
The minimum age of a person competent to make a will is 18. The number of witnesses necessary to execute a will is two.
The custodial arrangement terminates when:
- The minor child reaches age 21 for custodial transfers made by irrevocable lifetime gift, will, trust, or exercise of a power of appointment.
- The minor child reaches the age of majority (generally speaking, age 18) for other custodial transfers.
- The minor child dies.
Dying without a Last Will, the Wisconsin Laws of Intestacy.
The estate goes to the spouse or domestic partner (DP), as follows:
- If there are no surviving descendants, —100% of the estate
- If there are surviving descendants who are also all descendants of the spouse or D.P., —100%
- If there are surviving descendants and one or more are not also descendants of the spouse or D.P., —50% of property other than the decedent’s interest in a marital property or property held equally and exclusively with the spouse D.P. as tenants in common.
If there is no surviving spouse or D.P., or if a portion of the estate does not go to the spouse or D.P.:
- 100% to the descendants, per stirpes (see Wis. Stat. §854.04)
If there is no surviving spouse/D.P. or descendant:
- 100% to surviving parent or parents equally
If there is no surviving spouse/D.P., descendant, or parent:
- 100% to siblings and the descendants of any deceased siblings, per stirpes (see Wis. Stat. §854.04)
If none of the above:
- Intestacy laws outline further distribution steps to grandparents’ level, then deceased spouses, and their descendants. See Wis. Stat. §852.01(1)(f).
- If no legally described recipient can be found, estate assets go to the state of Wisconsin.
Wisconsin follows the Revised Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
Wisconsin does not impose an inheritance tax.
Credit Estate Tax
Wisconsin imposes an estate tax equal to the maximum credit allowed under the federal tax code for paid state estate and inheritance taxes under I.R.C. Sec. 2011. However, the current federal tax code does not permit a credit for paid state estate or inheritance taxes. Therefore, there is no credit estate tax in effect at this time.
Generation-Skipping Transfer Tax (G.S.T. Tax)
Wisconsin does not impose a G.S.T. tax.
Wisconsin does not impose a gift tax.