Wisconsin Statutes

Wis. Stat. § 803.01 (2026)

Parties plaintiff and defendant; capacity

✓ current as of July 2026

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803.01803.01 Parties plaintiff and defendant; capacity.

803.01(1)(1) Real party in interest. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

803.01(2)(2) Representatives. A personal representative, guardian, bailee, or trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party’s name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner’s name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.

803.01(3)(3) Minors or individuals alleged or adjudicated incompetent.

803.01(3)(a)(a) Appearance by guardian or guardian ad litem. If a party to an action or proceeding is a minor, or if a party is adjudicated incompetent or alleged to be incompetent, the party shall appear by an attorney, by the guardian of the estate of the party who may appear by attorney, or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases in which the minor or individual alleged to be incompetent has no guardian of the estate, in which the guardian fails to appear and act on behalf of the ward or individual adjudicated incompetent, or in which the interest of the minor or individual adjudicated incompetent is adverse to that of the guardian. Except as provided in s. 807.10, if the guardian does appear and act and the interests of the guardian are not adverse to the minor or individual adjudicated incompetent, a guardian ad litem may not be appointed. Except as provided in s. 879.23 (4), if the interests of the minor or individual alleged to be or adjudicated incompetent are represented by an attorney of record, the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem.

803.01(3)(b)(b) Guardian ad litem.

803.01(3)(b)1.1. The guardian ad litem shall be appointed by a circuit court of the county where the action is to be commenced or is pending, except that the guardian ad litem shall be appointed by a circuit court commissioner of the county in actions to establish paternity that are before the circuit court commissioner.

803.01(3)(b)2.2. When the plaintiff is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the plaintiff’s application or upon the state’s application under s. 767.407 (1) (c); or if the plaintiff is under that age or is adjudicated incompetent or alleged to be incompetent, upon application of the plaintiff’s guardian or of a relative or friend or upon application of the state under s. 767.407 (1) (c). If the application is made by a relative, a friend, or the state, notice thereof must first be given to the guardian if the plaintiff has one in this state; if the plaintiff has none, then to the person with whom the minor or individual adjudicated incompetent resides or who has the minor or individual adjudicated incompetent in custody.

803.01(3)(b)3.3. When the defendant is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the defendant’s application made within 20 days after the service of the summons or other original process; if the defendant is under that age or neglects to so apply or is adjudicated incompetent or alleged to be incompetent, then upon the court’s own motion or upon the application of any other party or any relative or friend or the defendant’s guardian upon such notice of the application as the court directs or approves.

803.01(3)(b)4.4. If the appointment, for a plaintiff or a defendant, is after the commencement of the action, it shall be upon motion entitled in the action. If the appointment is for a plaintiff and is made before the action is begun, the petition for appointment shall be entitled in the name of the action proposed to be brought by the minor or individual adjudicated incompetent or alleged to be incompetent, and the appointment may be made before the summons is served. Upon the filing of a petition for appointment before summons, the clerk may impose the fee required for the commencement of an action, but in that event no additional commencement fee may be imposed when the summons is filed.

803.01(3)(b)5.5. The motion or petition under subd. 4. shall state facts showing the need and authority for the appointment. The hearing on the motion or petition under subd. 4., if made by a minor or an individual adjudicated incompetent or alleged to be incompetent for the minor’s or individual’s guardian ad litem, may be held without notice and the appointment made by order. If the motion or petition is made for a minor or an individual adjudicated incompetent or alleged to be incompetent who is an adverse party, the hearing shall be on notice.

803.01(3)(b)6.6. If a compromise or a settlement of an action or proceeding to which an unrepresented minor or individual adjudicated incompetent or alleged to be incompetent is a party is proposed, a guardian ad litem shall be appointed, upon petition in a special proceeding, to protect the interest of the minor or individual even though commencement of an action is not proposed. Any compromise or settlement shall be subject to s. 807.10.

803.01(3)(c)(c) Procedure for unrepresented person.

803.01(3)(c)1.1. If at any time prior to the entry of judgment or final order, the court finds that either a minor, or a person believed by the court to be mentally incompetent to have charge of his or her affairs, has not been represented in the action or proceeding as provided in par. (a), there shall be no further proceedings until a guardian ad litem is appointed. In making such appointment, the court shall fix a reasonable time within which the guardian ad litem may move to vacate or strike any order entered or action taken during the period when a guardian ad litem was required; and as to all matters to which objection is not made, the guardian ad litem and the ward shall be bound. Any such motion by a guardian ad litem shall be granted as a matter of right.

803.01(3)(c)2.2. If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or an individual adjudicated or alleged to be incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of:

803.01(3)(c)2.a.a. The minor or individual adjudicated or alleged to be incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or

803.01(3)(c)2.b.b. The personal representative of the minor or individual adjudicated or alleged to be incompetent at any time prior to the expiration of one year after the death of the minor or individual.

803.01 HistoryHistory: Sup. Ct. Order, 67 Wis. 2d 585, 638 (1975); 1975 c. 218; 1977 c. 299, 449; 1981 c. 317; 1993 a. 481; 1997 a. 35; 2001 a. 61, 102; 2005 a. 387; 2005 a. 443 s. 265; 2009 a. 276.

803.01 AnnotationThe county in which proceedings are brought must pay the fee of an appointed guardian ad litem. Romasko v. City of Milwaukee, 108 Wis. 2d 32, 321 N.W.2d 123 (1982).

803.01 AnnotationSub. (3) (a) requires that, in all cases, a minor who is a party to an action must have a court-appointed general guardian of the property or a guardian ad litem. To be general guardians, parents must be appointed by the court. The parent’s attorney does not represent the minor unless the attorney has also been appointed guardian ad litem or general guardian. Jensen v. McPherson, 2002 WI App 298, 258 Wis. 2d 962, 655 N.W.2d 487, 01-2912.

Notes of Decisions

Cited in 31 cases (8 in the last 5 years), 1980–2026 · leading case: Wausau Tile, Inc. v. Cnty. Concrete Corp., 593 N.W.2d 445 (Wis. 1999).

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Wausau Tile, Inc. v. Cnty. Concrete Corp., 593 N.W.2d 445 (Wis. 1999). · cites it 8× “Moreover, even if Wausau Tile's claims were sufficient to allege personal injury and/or property damage, it would not be permitted to litigate those claims because it would not be a real party in interest and, as will be discussed later in this opinion, joinder of the real…”

Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (Wis. 1997). · cites it 4× “The legislature has tolled the statute of limitations for minors to file personal injury actions until they reach majority. See Wis. Stat. § 893.16 .”

Romasko v. City of Milwaukee, 321 N.W.2d 123 (Wis. 1982). · cites it 4× “The court stated that, pursuant to sec. 803.01(3), Stats., it was required to appoint a guardian ad litem and, furthermore, that sec.”

Jensen Ex Rel. Stierman v. McPherson, 2002 WI App 298 (Wis. Ct. App. 2002). · cites it 23× “Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01 (3)(a), until after the 1997 action was…”

Forman v. McPherson, 2004 WI App 145 (Wis. Ct. App. 2004). · cites it 2× “We disagreed and explained that Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01 (3)(a),…”

Interest of Katie T. v. Justin R., 555 N.W.2d 651 (Wis. Ct. App. 1996). · cites it 4× “As an alternative, Briggs points to § 803.01(3), Stats., the general statute authorizing appointments of guardians ad litem for minors and incompetents appearing in circuit court, asserting that this statute "furnishes a more general basis for the appointment of a guardian ad…”

Kainz v. Ingles, 2007 WI App 118 (Wis. Ct. App. 2007). · cites it 3× “14, as well as Wis. Stat. § 803.01 (3)(a), the standard for the appointment of a guardian ad litem, and Wis.”

Wisconsin v. Jody A. E., 491 N.W.2d 136 (Wis. Ct. App. 1992). · cites it 4× “, applies to a paternity action, sec. 803.01(2), Stats., says that any party authorized by statute to sue for the benefit of another may do so without naming the party being benefited.”

Schwister v. Schoenecker, 2002 WI 132 (Wis. 2002). · cites it 2× “The next sentence in Wis. Stat. § 803.01 (l)(a) governs the' service of the suggestion of death, which may, but need not, precede the motion for substitution.”

Korkow v. Gen. Cas. Co. of Wisconsin, 344 N.W.2d 108 (Wis. 1984). “The trial court held that the amendment related back to the date of filing of the original complaint under sec. 803.01(1), Stats. 6 General Casualty appealed to the court of appeals.”

State Ex Rel. Chiarkas v. Skow, 465 N.W.2d 625 (Wis. 1991). · cites it 2× “2d 123 (1982), we addressed the situation of whether the county should compensate a guardian ad litem that the court was required to appoint, pursuant to sec. 803.01(3), Stats. 1979-80, and sec. 757.”

Huggins by Huggins v. Sea Ins. Co., Ltd., 710 F. Supp. 243 (E.D. Wis. 1989). · cites it 2× “And although in Wisconsin a guardian ad litem must be appointed before a minor commences any legal action, see Wis.Stat. § 803.01(3), the failure to appoint a guardian does not justify nonjoinder because it is a parent’s duty to preserve a child’s claim by timely action.”

Show all 31 citing cases →

— Wis. Stat. § 803.01(1) — 8 cases

Louis Pagoudis v. Marcus Keidl, 2021 WI App 56 (Wis. Ct. App. 2021).

Est. of Plautz v. Time Ins. Co., 525 N.W.2d 342 (Wis. Ct. App. 1994).

Korkow v. Gen. Cas. Co. of Wisconsin, 333 N.W.2d 124 (Wis. Ct. App. 1983).

In re Thompson, 520 B.R. 713 (Bankr. E.D. Wis. 2014).

— Wis. Stat. § 803.01(2) — 3 cases

Wisconsin v. Jody A. E., 491 N.W.2d 136 (Wis. Ct. App. 1992). “, applies to a paternity action, sec. 803.01(2), Stats., says that any party authorized by statute to sue for the benefit of another may do so without naming the party being benefited.”

State v. Cardenas-Hernandez, 571 N.W.2d 406 (Wis. Ct. App. 1997).

Kubale v. DeSoto, Inc., 777 F. Supp. 1452 (E.D. Wis. 1991).

— Wis. Stat. § 803.01(3) — 8 cases

Interest of Katie T. v. Justin R., 555 N.W.2d 651 (Wis. Ct. App. 1996). “As an alternative, Briggs points to § 803.01(3), Stats., the general statute authorizing appointments of guardians ad litem for minors and incompetents appearing in circuit court, asserting that this statute "furnishes a more general basis for the appointment of a guardian ad…”

Romasko v. City of Milwaukee, 321 N.W.2d 123 (Wis. 1982). “The court stated that, pursuant to sec. 803.01(3), Stats., it was required to appoint a guardian ad litem and, furthermore, that sec.”

State Ex Rel. Chiarkas v. Skow, 465 N.W.2d 625 (Wis. 1991). “2d 123 (1982), we addressed the situation of whether the county should compensate a guardian ad litem that the court was required to appoint, pursuant to sec. 803.01(3), Stats. 1979-80, and sec. 757.”

Huggins by Huggins v. Sea Ins. Co., Ltd., 710 F. Supp. 243 (E.D. Wis. 1989). “And although in Wisconsin a guardian ad litem must be appointed before a minor commences any legal action, see Wis.Stat. § 803.01(3), the failure to appoint a guardian does not justify nonjoinder because it is a parent’s duty to preserve a child’s claim by timely action.”

A.M.L. v. J.E.L., 467 N.W.2d 570 (Wis. Ct. App. 1991).

— Wis. Stat. § 803.01(3)(a) — 7 cases

Romasko v. City of Milwaukee, 321 N.W.2d 123 (Wis. 1982). “The court stated that, pursuant to sec. 803.01(3), Stats., it was required to appoint a guardian ad litem and, furthermore, that sec.”

Brandt v. Brandt, 468 N.W.2d 769 (Wis. Ct. App. 1991).

Kainz v. Ingles, 2007 WI App 118 (Wis. Ct. App. 2007). “14, as well as Wis. Stat. § 803.01 (3)(a), the standard for the appointment of a guardian ad litem, and Wis.”

Jensen Ex Rel. Stierman v. McPherson, 2002 WI App 298 (Wis. Ct. App. 2002). “Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01 (3)(a), until after the 1997 action was…”

Terry Allen Olson v. Laurie Jean Olson (Wis. Ct. App. 2023).

— Wis. Stat. § 803.01(3)(b) — 4 cases

A.M.L. v. J.E.L., 467 N.W.2d 570 (Wis. Ct. App. 1991).

In Re Paternity of Aml, 467 N.W.2d 570 (Wis. Ct. App. 1991).

Holly K. Schroeder v. Thomas P. Schroeder (Wis. Ct. App. 2026).

W. C. B. v. EMCASCO Ins. Co. (Wis. Ct. App. 2024).

— Wis. Stat. § 803.01(3)(c) — 2 cases

Holly K. Schroeder v. Thomas P. Schroeder (Wis. Ct. App. 2026).

— Wis. Stat. § 803.01(3)(c)(2) — 1 case

Beal v. Armstrong Containers Inc (E.D. Wis. 2023).

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