Wisconsin § 766.31 - Classification of property of spouses.

§ 766.31. Classification of property of spouses.

766.31(1) (1) General. All property of spouses is marital property except that which is classified otherwise by this chapter and that which is described in sub. (8) . 766.31(2) (2) Presumption. All property of spouses is presumed to be marital property. 766.31(3) (3) Spouse’s interest in marital property. Each spouse has a present undivided one-half interest in each item of marital property, subject to all of the following: 766.31(3)(a) (a) Terminable interest in deferred employment benefit plan. As provided in s. 766.62 (5) , the marital property interest of the nonemployee spouse in a deferred employment benefit plan or in assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan terminates at the death of the nonemployee spouse if he or she predeceases the employee spouse. 766.31(3)(b) (b) Division based on aggregate value at death. 766.31(3)(b)1. 1. Spouses may provide in a marital property agreement that at the death of a spouse some or all of their marital property will be divided based on aggregate value rather than divided item by item. However, at the death of a spouse, a marital property agreement is not necessary for a division of marital property that is not item by item. 766.31(3)(b)2. 2. The surviving spouse and the successor in interest to the decedent’s share of marital property may enter into an agreement providing that some or all of the marital property in which each has an interest will be divided based on aggregate value rather than divided item by item. 766.31(3)(b)3. 3. The surviving spouse and a distributee who is a successor in interest to all or part of the decedent’s one-half interest in marital property may petition the court to approve an exchange of interests in the marital property authorized under subd. 1. or 2. , but court approval of the exchange is not required for the agreement under subd. 1. or 2. to be effective. If the court approves the exchange, the surviving spouse and the distributee shall exchange their respective interests in 2 or more items of marital property and distribute the items in a manner to conform with the exchange. The exchange shall: 766.31(3)(b)3.a. a. Occur before the final distribution of the assets under the governing instrument; 766.31(3)(b)3.b. b. Be composed of items which are fairly representative of the appreciation and depreciation that has occurred since the date of death; 766.31(3)(b)3.c. c. Be composed of items having a fair market value at the time of exchange equal to what would have been distributed had no exchange request been made, including any money used in the exchange; and 766.31(3)(b)3.d. d. Be reported with a written description of each item, its basis and its fair market value at the time of exchange in the manner prescribed by the department of revenue. 766.31(4) (4) Classification of income. Except as provided under subs. (7) (a) , (7p) and (10) , income earned or accrued by a spouse or attributable to property of a spouse during marriage and after the determination date is marital property. 766.31(5) (5) Transfer to a trust. The transfer of property to a trust does not by itself change the classification of the property. 766.31(6) (6) Property owned at determination date. 766.31(6)(a) (a) Date of marriage same as determination date. If the date of marriage is the same as the determination date, the property owned at the determination date is individual property of the owning spouse. 766.31(6)(b) (b) Date of marriage prior to determination date. If the date of marriage precedes the determination date, the property owned at the determination date is not classified by this chapter but is subject to all of the following: 766.31(6)(b)1. 1. Subsections (8) and (9) govern property owned at the time of marriage. 766.31(6)(b)2. 2. Subsections (8) and (9) govern property acquired while the spouses were married but before the determination date if the property would have been individual property had it been acquired after the determination date. 766.31(6)(b)3. 3. Subsections (8) and (9) and s.