766.625 (2). (8) The issue of whether a marital property agreement is unconscionable is for the court to decide as a matter of law. In the event that legal counsel is retained in connection with a marital property agreement the fact that both parties are represented by one counsel or that one party is represented by counsel and the other party is not represented by counsel does not by itself make a marital property agreement unconscionable or otherwise affect its enforceability. (9) (a) Modification or elimination of spousal support during the marriage may not result in a spouse having less than necessary and adequate support, taking into consideration all sources of support. (b) If a marital property agreement modifies or eliminates spousal support so as to make one spouse eligible for public assistance at the time of dissolution of the marriage or termination of the marriage by death, the court may require the other spouse or the other spouse’s estate to provide support necessary to avoid that eligibility, notwithstanding the marital property agreement. (10) If the spouses agree in writing to arbitrate any controversies arising under this chapter or a marital property agreement, the arbitration agreement is enforceable under ch. 788.
Updated 23-24 Wis. Stats.
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(11) Married persons or persons intending to marry each other may record a marital property agreement in the county register of deeds office under s. 59.43 (1c) (r). (12) (a) A provision of a document signed before the determination date by spouses or unmarried persons who subsequently married each other, which provision affects the property of either of them and is enforceable by either of them without reference to this chapter, is not affected by this chapter except as provided otherwise in a marital property agreement made after the determination date. (b) If a provision or an amendment to a provision in a document described under par. (a) is intended to negate, apply or modify any right or obligation which may be acquired under 1983 Wisconsin Act 186, 1985 Wisconsin Act 37, or a community property system, the provision or amendment is enforceable after the determination date if the document was enforceable when executed or, if it is executed after April 4, 1984, either was enforceable when executed or would be enforceable if it were executed after the determination date. (c) This subsection does not affect a marital property agreement executed under s. 766.585. (13) (a) With respect to a provision of a marital property agreement that is effective upon or after dissolution of the marriage or termination of the marriage by death, any statute of limitations applicable to enforcement of the provision is tolled until dissolution of the marriage or termination of the marriage by death, respectively. (b) 1. After the death of a spouse, if an estate administration proceeding is filed, no action concerning a marital property agreement may be brought later than 6 months after the inventory is filed under s. 858.01. If an amended inventory is filed, the action may be brought within 6 months after the filing of the amended inventory if the action relates to information contained in the amended inventory that was not contained in a previous inventory. 2. After the death of a spouse, if no estate administration proceeding is filed, no action concerning a marital property agreement may be brought later than 8 months after the death of the spouse. 3. If an action concerning a marital property agreement is barred under subd. 2. and an estate administration proceeding is thereafter commenced, any judgment in an action concerning a marital property agreement not barred under subd. 1. may be recovered only from the estate of the deceased spouse. (c) The court may extend the 6-month period under par. (b) 1. for cause if a motion for extension is made within the applicable 6-month period. (14) Limitations on the effect of marital property agreements for state income tax purposes are set forth in ch. 71. History: 1983 a. 186; 1985 a. 37, 403; 1991 a. 301; 1993 a. 160, 213; 1995 a. 201; 1997 a. 188; 2005 a. 443 s. 265; 2015 a. 196; 2023 a. 127. NOTE: 1991 Wis. Act 301 contains legislative council notes. Discussing whether property agreements are inequitable under s. 767.255 (11) [now s. 767.61 (3) (L)]. Button v. Button, 131 Wis. 2d 84, 388 N.W.2d 546 (1986). An annuity that transferred ownership from the owner to a “co-annuitant” on the owner’s death was a joint account under s. 705.04 (1) and a contractual agreement that created a nonprobate transfer under s. 705.20 (1). Both will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis. 2d 853, 616 N.W.2d 118, 99-1211. Spouses may affirmatively waive the homestead protection in s. 706.02 (1) (f) in a premarital agreement. Jones v. Estate of Jones, 2002 WI 61, 253 Wis. 2d 158, 646 N.W.2d 280, 01-1025. No provision of sub. (3) or s. 705.20 permits parties to ignore ch. 854 or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will” provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes’ Retirement System Annuity & Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254. Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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Updated 23-24 Wis. Stats.
A Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. July 1999.