Disclaimer: This is general information only and not legal advice. For guidance about a specific estate, contact a Wisconsin probate attorney.
Detailed Answer — How Wisconsin law distributes an intestate estate among children
When a person dies without a valid will in Wisconsin, the state’s intestacy rules determine who inherits. These rules are in Wisconsin’s statutes governing inheritance (see Chapter 852). The short answer for distribution among children is:
- If one or more children survive the decedent and there is no surviving spouse entitled to part of the estate, the estate is divided among those surviving children.
- If a child died before the decedent but left descendants (for example, grandchildren), those descendants take the deceased child’s share by representation (commonly called “per stirpes” distribution).
- Adopted children are treated the same as biological children for intestate succession. Stepchildren normally do not inherit unless legally adopted. Children born outside marriage inherit if paternity is established under Wisconsin law.
For the statutory framework, see Wisconsin’s intestacy statutes: https://docs.legis.wisconsin.gov/statutes/statutes/852
How representation (per stirpes) works — plain-language explanation and examples
Wisconsin uses representation so that each child of the decedent represents a family branch. Think of the estate being split into one share for each of the decedent’s children (the first generation under the decedent). Any child who survives receives his or her full share. If a child predeceased the decedent, that child’s share is held for the child’s own descendants and divided among them.
Example A (one generation): The decedent has three children A, B and C. All three survive. The estate is divided into three equal shares — one to A, one to B, and one to C.
Example B (representation): The decedent has three children A, B and C. B died before the decedent but B had two children (B1 and B2). The estate is divided into three equal shares. A receives 1/3, C receives 1/3, and B’s 1/3 is split equally between B1 and B2 (each gets 1/6).
Example C (multiple predeceased children): If two children predeceased and each left descendants, each branch receives one equal share divided among that branch’s descendants.
Special situations that affect children’s rights
- Adopted children: Wisconsin law treats legally adopted children as the children of the adoptive parent for intestate succession. They inherit the same as biological children.
- Stepchildren: Stepchildren do not automatically inherit unless they were legally adopted by the decedent.
- Children born out of wedlock: These children may inherit if legal parentage is established under state law.
- Posthumous children: A child conceived before the parent’s death but born after death typically can inherit; evidence of conception and birth timing may be necessary.
- Simultaneous death or uncertain order of death: Statutory rules govern situations where the order of deaths is unclear; these rules can affect whether a child is treated as surviving the decedent.
Where the decedent leaves a surviving spouse as well as children, Wisconsin’s intestacy statutes specify how the estate divides between spouse and descendants depending on whether the descendants are also descendants of the surviving spouse. For the precise statutory rules on spouse-versus-descendant shares, see: https://docs.legis.wisconsin.gov/statutes/statutes/852
Helpful Hints
- Start by identifying all children and any descendants of children (grandchildren, great-grandchildren). Create a simple family tree to visualize branches.
- Collect key documents: birth certificates, adoption papers, death certificates for predeceased children, and any documents establishing paternity if necessary.
- If a child predeceased the decedent, collect that child’s death certificate and birth records for that child’s descendants to show representation rights.
- Check whether any children were legally adopted by someone else or adopted out; adoption records change inheritance rights.
- If a spouse survives the decedent, confirm whether the children are also children of the surviving spouse — that matters under Wisconsin law for how the estate is split.
- For matters that involve contested paternity, adoptions, or complex blended families, consult a Wisconsin probate attorney early — small factual differences can change who inherits and how much.
- Use the Wisconsin legislature site to read the statutes: https://docs.legis.wisconsin.gov/statutes/statutes/852. For court forms and basic probate procedures, see the Wisconsin Courts self-help probate pages: https://www.wicourts.gov/services/public/selfhelp/estate.htm
If you need help applying these rules to a specific family situation, an experienced Wisconsin probate attorney or the clerk of probate court in the county where the decedent lived can explain how the statutes apply.
Final reminder: This information is educational and not legal advice. Only a licensed attorney who reviews your full facts can give you tailored legal guidance.