Detailed Answer
Under Wisconsin law, a surviving spouse may in certain cases elect to take a life estate in the decedent’s homestead instead of accepting the intestate share apportioned under chapters 853 and 863 of the Wisconsin Statutes. This option allows the spouse to retain use and possession of the residence for life while the remainder interest passes to other heirs.
1. Statutory Basis
The right to elect a life estate is set out in Wis. Stat. § 853.055 (“Election in lieu of property distributive share”). Under that provision, when a decedent dies without a valid will and is survived by a spouse and one or more other heirs, the spouse may choose one of two options:
- Accept the intestate share calculated under Wis. Stat. ch. 863; or
- Elect to take a life estate in the homestead and, if desired, the statutory exempt personal property allowances instead of the intestate share.
Link: Wis. Stat. § 853.055
2. Who Qualifies?
To qualify, you must be the decedent’s surviving spouse. The decedent must have died intestate (without a valid will) and must have owned a homestead as defined in Wis. Stat. § 701.32(1). If the decedent owned multiple residences, only the principal residence may be set aside.
3. How to Elect
- File a written election with the probate court in the county where the estate is opened. Use a form or draft a document that clearly states you elect a life estate in the homestead “in lieu of my intestate share.”
- File your election within six months after the date letters of administration or letters testamentary are issued. If you miss the deadline, you automatically receive your intestate share and waive the life-estate option.
- Serve a copy of the election on the personal representative and all heirs at their last known addresses.
Once filed, the court clerk will note the election on the estate record. The personal representative then transfers possession of the homestead to you as a life tenant. The remainder interest vests in the other heirs.
4. Consequences of the Election
- Life Estate Rights: You have the right to occupy, use, and enjoy the homestead for the rest of your life. You must pay property taxes, maintain insurance, and keep the property in good repair.
- Remainder Interests: Upon your death, the homestead interest passes automatically to the decedent’s other heirs or devisees in proportion to their intestate shares.
- Impact on Personal Property: You may also elect statutory exempt property allowances (for furniture, vehicles, and personal effects) under Wis. Stat. § 853.05 (Homestead and Exempt Property Allowance), but those allowances are separate from the life-estate election.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss how Wisconsin law applies to your situation.
Helpful Hints
- Confirm the homestead qualifies under Wis. Stat. § 701.32 before electing a life estate.
- File your election early—late elections are not accepted.
- Keep proof of service on the personal representative and heirs.
- Discuss responsibilities and costs (taxes, insurance, repairs) before choosing the life-estate route.
- Consider how a life estate may affect eligibility for public benefits like Medicaid.