Wisconsin Statutes
Wis. Stat. § 861.21 (2026)
Assignment of home to surviving spouse or surviving domestic partner
✓ current as of July 2026
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861.21(1)(b)(b) “Home” means any dwelling in which the decedent had an interest and that at the time of the decedent’s death the surviving spouse or surviving domestic partner occupies or intends to occupy. If there are several such dwellings, any one may be designated by the surviving spouse or surviving domestic partner. “Home” includes a house, a mobile home, a manufactured home, a duplex or multiple apartment building one unit of which is occupied by the surviving spouse or surviving domestic partner and a building used in part for a dwelling and in part for commercial or business purposes. “Home” includes all of the surrounding land, unless the court sets off part of the land as severable from the remaining land under sub. (5).
861.21(2)(2) Decedent’s property interest in home. Subject to subs. (4) and (5), if a married decedent or decedent in a domestic partnership has a property interest in a home, the decedent’s entire interest in the home shall be assigned to the surviving spouse or surviving domestic partner if the surviving spouse or surviving domestic partner petitions the court requesting such a distribution and if a governing instrument does not provide a specific transfer of the decedent’s interest in the home to someone other than the surviving spouse or surviving domestic partner. The surviving spouse or surviving domestic partner shall file the petition within 6 months after the decedent’s death, unless the court extends the time for filing.
861.21(4)(4) Payment by surviving spouse or surviving domestic partner. The court shall assign the interest in the home under sub. (2) to the surviving spouse or surviving domestic partner upon payment of the value of the decedent’s interest in the home that does not pass to the surviving spouse or surviving domestic partner under intestacy or under a governing instrument. Payment shall be made to the fiduciary holding title to the interest. The surviving spouse or surviving domestic partner may use assets due him or her from the fiduciary to satisfy all or part of the payment in kind. Unless the court extends the time, the surviving spouse or surviving domestic partner shall have one year from the decedent’s death to pay the value of the assigned interest.
861.21(5)(5) Severance of home from surrounding land. On petition of the surviving spouse or surviving domestic partner or of any interested person that part of the land is not necessary for dwelling purposes and that it would be inappropriate to assign all of the surrounding land as the home under sub. (2), the court may set off for the home as much of the land as is necessary for a dwelling. In determining how much land should be set off, the court shall take into account the use and marketability of the parcels set off as the home and the remaining land.
Notes of Decisions
Cited in 5
cases (1 in the last 5 years), 2002–2023 · leading case: Julaine K. Appling v. Scott Walker, 2014 WI 96 (Wis. 2014).
Julaine K. Appling v. Scott Walker, 2014 WI 96 (Wis. 2014). “The mechanism the legislature chose for conferring rights and obligations was to select a subset of rights and obligations found in other parts of the statutes that already apply to marriages and then indicate, in the text of those other statutes, that they apply to domestic…”
Allstate Life Ins. v. Hanson, 200 F. Supp. 2d 1012 (E.D. Wis. 2002). “§ 861.21; see also Erlanger, Wisconsin’s New Probate Code, 71 Wis.”
Appling v. Doyle, 2013 WI App 3 (Wis. Ct. App. 2012). “For example, Wis. Stat. § 861.21 (2), the statute assigning to a surviving spouse his or her decedent spouse's interest in their home, was made applicable to domestic partnerships.”
Droukas v. Est. of Felhofer, 2014 WI App 6 (Wis. Ct. App. 2013). “On July 29, 2011, Felhofer filed a Petition to Assign Home to Surviving Spouse, pursuant to Wis. Stat. § 861.21 . Following a hearing on the petition, the circuit court ordered assignment of the Property to Felhofer "upon the payment of the value of the decedent's interest in…”
Amara Gerger v. Yajaira Vanessa Avila Gerger (Wis. Ct. App. 2023). “§ 861.21 (2021-22),2 which governs the assignment of a home to a surviving spouse.”
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