Wisconsin Statutes
Wis. Stat. § 861.01 (2026)
Ownership of marital property at death
✓ current as of July 2026
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861.01(1)(1) Surviving spouse’s one-half interest in marital property. Upon the death of either spouse, the surviving spouse retains his or her undivided one-half interest in each item of marital property. The surviving spouse’s undivided one-half interest in each item of marital property is not subject to administration. Ownership and management and control rights are set forth under ss. 857.01 and 857.015.
861.01(2)(2) Interest of a 3rd party in marital property. A 3rd party who is a successor in interest to all or part of the decedent’s 50 percent interest in marital property is a tenant in common with the surviving spouse.
861.01(3m)(3m) Personal injury damages; lost earnings. Section 766.31 (7m) determines the rights of a surviving spouse to that part of a personal injury claim that represents future lost earnings of the surviving spouse.
861.01(4)(4) Enforcement of surviving spouse’s marital property rights in nonprobate assets. Section 766.70 applies to enforcement of a surviving spouse’s marital property rights in nonprobate assets.
861.01(5)(5) Division of marital property on aggregate basis. Section 766.31 (3) (b) determines how marital property may be divided upon the death of a spouse.
861.01 AnnotationNew probate and non-probate property elections under Wisconsin’s marital property act. Erlanger and Weisberger. WBB Oct. and Nov. 1986.
861.01 AnnotationWisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.
Notes of Decisions
Cited in 5
cases, 1992–2020 · leading case: Carroll v. Ansley, 2001 WI App 120 (Wis. Ct. App. 2001).
Carroll v. Ansley, 2001 WI App 120 (Wis. Ct. App. 2001). “At Alma's death, pursuant to Wis. Stat. § 861.01 , Lamel retained his undivided one-half interest in all marital property, which property was not *284 subject to administration.”
Droukas v. Est. of Felhofer, 2014 WI App 6 (Wis. Ct. App. 2013). “See Wis. Stat. § 861.01 (1). 3 The parties also agree that, under the rules of intestacy, the Decedent's one-half interest in the Property will pass to *388 the Felhofer Children unless the Property is classified as survivorship marital property by operation of Wis.”
In Re Est. of Joyce, 2008 WI App 92 (Wis. Ct. App. 2008). “Wis. Stat. § 861.01 (1). Thus, even accepting for the sake of argument that Mary Jo's demand for formal administration of Michael's estate could be called "commencing] an action," 2 this "action" had nothing to do with asserting her marital property interest.”
In Matter of Est. of Moccero, 483 N.W.2d 310 (Wis. Ct. App. 1992). “The parties agree that the homestead was not marital property subject to sec. 861.01(1), Stats., but was "deferred marital property," as defined in sec.”
Tim J. Fruit v. Bonnie J. Fruit (Wis. Ct. App. 2020). “§ 861.01. All property of spouses is presumed to be marital property unless that property is classified otherwise by, as examples, the exceptions listed in WIS.”
Wis. Stat. § 861.01(1): 2 cases
Droukas v. Est. of Felhofer, 2014 WI App 6 (Wis. Ct. App. 2013). “See Wis. Stat. § 861.01 (1). 3 The parties also agree that, under the rules of intestacy, the Decedent's one-half interest in the Property will pass to *388 the Felhofer Children unless the Property is classified as survivorship marital property by operation of Wis.”
In Matter of Est. of Moccero, 483 N.W.2d 310 (Wis. Ct. App. 1992). “The parties agree that the homestead was not marital property subject to sec. 861.01(1), Stats., but was "deferred marital property," as defined in sec.”
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