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Detailed Answer

When a wrongful-death recovery exists in Wisconsin, the decedent’s personal representative normally brings the action and controls settlement and distribution of proceeds on behalf of the estate and statutory beneficiaries. If family members or beneficiaries later claim there was an oral agreement to divide the proceeds in a particular way, enforcing or disputing that oral agreement follows a mix of probate, contract, and civil procedures.

Who controls the wrongful-death proceeds?

Under Wisconsin law wrongful-death claims are prosecuted and handled through the estate or the personal representative. The personal representative has the authority and fiduciary duty to collect, compromise, and distribute claims for the benefit of the estate and the persons entitled to recover. For the precise statutory framework for wrongful-death causes of action in Wisconsin, see the state statutes (searchable):
Wisconsin statutes — wrongful death search.

Are oral agreements enforceable?

Short answer: sometimes. An oral agreement can be legally binding in Wisconsin if the essential terms are provable and no statute requires a written contract for that particular subject. But oral agreements are harder to prove than written ones. In the estate context, the enforceability of an oral agreement to split wrongful-death proceeds depends on:

• Who made the agreement (the personal representative, beneficiaries, claimant, or insurer).
• Whether the agreement concerned distribution of estate property or a settlement of a lawsuit.
• What evidence supports the agreement (witness testimony, contemporaneous emails or texts, partial performance, bank records, checks, settlement emails, or notes by the personal representative).
• Whether any statute (for example, a statute of frauds-related rule) requires a writing for that exact type of arrangement.

Steps to try to enforce an oral agreement

1. Confirm who has legal authority. Determine whether the person who allegedly made the oral promise had authority to bind the estate (usually the personal representative). If a beneficiary made promises among themselves but the personal representative never approved, the estate may not be bound.
2. Collect evidence. Gather all communications, witnesses, bank records, checks, draft settlement documents, and any partial performance that supports the oral agreement (for example, distributions already made that match the alleged agreement).
3. Try negotiation or mediation first. Often these disputes are resolved more quickly and cheaply by mediation or a negotiated accounting and distribution among the parties than by litigation.
4. Ask the personal representative to act. If the personal representative refuses to follow the agreed division, you can demand they either enforce the agreement (if it was valid) or, if they believe it invalid, explain in writing why. If the personal representative is uncooperative, proceed to court remedies below.
5. File a probate petition or civil action. Options include:
   • A petition in probate court asking the court to approve or enforce the settlement or to order an accounting and the correct distribution of estate assets.
   • A civil suit for breach of contract (if the oral agreement created contractual obligations between identifiable parties).
   • A petition to surcharge the personal representative (asking the probate court to hold the PR liable for losses caused by failure to follow an agreement or by improper distributions).
   • A petition to remove the personal representative for breach of fiduciary duty if the PR acted improperly or in bad faith.
6. Seek interim relief if needed. If funds are at risk of being dissipated, you may ask the court for temporary injunctive relief or for an accounting so the matter can be preserved while the dispute is decided.
7. Prepare to prove the oral agreement. Courts assess credibility and objective evidence: consistent testimony, contemporaneous messages, bank transfers, or actions that show partial performance strengthen the claim. Courts may also enforce an oral settlement of a lawsuit if there is clear proof the parties reached a meeting of the minds and acted on it.

How a court evaluates a disputed oral agreement

Key elements a court will consider:

• Whether there was a valid meeting of the minds on essential terms (who gets what amount or share).
• Whether the person who made the promise had authority to bind the estate or to settle the claim.
• Whether one party partially performed in reliance on the promise (which favors enforcement).
• Credibility of witnesses and consistency of contemporaneous documentary evidence.
• Whether enforcing the agreement would violate statute or public policy.

Common remedies and outcomes

• Enforcement of the agreement by ordering the agreed distribution or ordering specific performance.
• Monetary damages for breach (compensatory damages, sometimes punitive only in rare cases).
• Surcharge against the personal representative for losses caused by wrongful distributions or failure to follow a valid agreement.
• Removal of the personal representative if misconduct or breach of fiduciary duty is established.

Timing and practical limits

Act promptly. Evidence for oral agreements fades with time, witnesses move, and records disappear. Also consider time limits such as statutes of limitations for breach of contract or tort claims and probate deadlines for filing claims against an estate. Check with a Wisconsin attorney quickly to preserve your rights.

For reference on statutes related to wrongful-death claims and the probate framework in Wisconsin, consult the Wisconsin Legislature’s statutes pages (searchable):
Wisconsin statutes — wrongful death search and
Wisconsin statutes — probate search. For practical probate procedure information, see the Wisconsin Courts’ probate information: Wisconsin Courts — probate services.

Helpful Hints

• Get legal help early. A Wisconsin probate or civil litigator can advise whether your oral agreement is likely enforceable and which court to approach.
• Preserve all communications immediately—texts, emails, notes, and witness names. Take screenshots and make dated copies.
• If you are the personal representative, document every decision and get important agreements in writing and signed to avoid future disputes.
• Consider mediation before filing suit—courts often encourage settlement and mediation can save time and cost.
• If you are a beneficiary and the personal representative refuses to distribute or account, file a petition in probate court asking for an accounting and for the court to decide the dispute.
• Be mindful of potential conflicts: if you negotiate for a distribution, understand whether you are speaking for yourself only or for all beneficiaries.
• Partial performance (for example, payments made consistent with the oral agreement) is strong evidence of an enforceable oral deal—collect and preserve proof of any such payments.