861.11 Protection of payers and other 3rd parties. (1) DEFINITION. In this section, “governing instrument” includes a filed verified statement under s. 865.201, a certificate under s. 867.046 (1m) or a recorded application under s. 867.046 (5). (2) PAYER NOT LIABLE UNTIL NOTICE RECEIVED. (a) Upon a beneficiary’s request for payment, a payer or other 3rd party who has received satisfactory proof of the decedent’s death and who has not received written notice that the surviving spouse or his or her representative intends to file a petition for the deferred marital property elective share amount or that a petition for the election has been filed is not liable for any of the following: 1. Causing any payment, item of property or other benefit included in the augmented deferred marital property estate under s. 861.03, to transfer directly to the beneficiary designated in a governing instrument. 2. Any other action in good faith reliance on the validity of a governing instrument. (b) A payer or other 3rd party is liable for payments made or other actions taken after receipt of written notice of the intent to file a petition for the elective share amount or written notice that a petition for the elective share amount has been filed. (3) METHOD OF NOTICE TO PAYERS. A written notice of the intent to file a petition for the election or written notice that a petition for the election has been filed shall fulfill one of the following requirements: (a) Be mailed to the payer’s or other 3rd party’s main office or home by registered or certified mail, return receipt requested. (b) Be served upon the payer or other 3rd party in the same manner as a summons in a civil action. (4) OPTIONAL PAYMENT OF PROCEEDS TO COURT. (a) Upon receipt of written notice of the intent to file, or the filing of, a petition for the election, a payer or other 3rd party may pay any amount owed or transfer or deposit any item of property to or with whichever of the following applies: 1. The court that has jurisdiction of the probate proceedings relating to the decedent’s estate if proceedings have been commenced.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
861.11
PROBATE — FAMILY RIGHTS
2. The court that has jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence, if no judicial proceeding has commenced. (b) Payments, transfers or deposits made to the court discharge the payer or other 3rd party from all claims for amounts paid or the value of property transferred or deposited. (c) The court shall hold the funds or items of property. After the court makes its determination under s. 861.08 (5), it shall order disbursement in accordance with that determination. The court shall order disbursement to the beneficiary designated in the governing instrument if either of the following conditions applies: 1. No petition is filed in the court within the specified time under s. 861.08 (1). 2. A petition was filed but withdrawn under s. 861.08 (4) with prejudice. (d) If payments have been made to the court or if property has been deposited with the court under par. (a), the court may order that all or part of the payments or property be paid to the beneficiary who is designated in the governing instrument, upon that beneficiary’s petition to the court. Those payments shall be in an amount and subject to conditions consistent with this subchapter. (5) PROTECTION OF FINANCIAL INSTITUTIONS. (a) In this subsection: 1. “Account” has the meaning given in s. 705.01 (1) or 710.05 (1) (a). 2. “Financial institution” has the meaning given in s. 705.01 (3). (b) Notwithstanding sub. (2), in addition to the protections afforded a financial institution under ss. 701.1012 and 710.05 and chs. 112 and 705 a financial institution is not liable for having transferred an account included in the augmented deferred marital property estate under s. 861.03 to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the beneficiary’s apparent entitlement under the terms of a governing instrument, regardless of whether the financial institution received written notice of an intent to file, or the filing of, a petition for the deferred marital property elective share amount. (c) If a financial institution has reason to believe that a dispute exists as to the rights of parties, or their successors, to an account subject to a governing instrument, the financial institution may, but is not required to, do any of the following: 1. Deposit the account with a court as provided in sub. (4). 2. Refuse to transfer the account to any person. (d) The protection afforded a financial institution under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of accounts. History: 1985 a. 37; 1987 a. 393 s. 53; 1997 a. 188; 2005 a. 216; 2013 a. 92.
SUBCHAPTER III
Updated 23-24 Wis. Stats.
6
purpose of defeating the rights of the surviving spouse under ch. 852 and this chapter. (b) Any breach of the good faith duty imposed by s. 766.15 made for the primary purpose of defeating the rights of the surviving spouse in or to marital property. (2) An arrangement made before marriage, or within one year after marriage, or prior to April 1, 1971, to provide for issue by a prior marriage is not a fraudulent property arrangement within the meaning of this section. (3) If the spouse is successful in an action to reach fraudulent property arrangements, recovery is limited to the amount the spouse would receive under ch. 852 and this chapter. Other rules of this chapter apply so far as possible. A spouse who recovers under this subsection forfeits any power of appointment that the surviving spouse possesses over the remaining portion of the fraudulently arranged property, except a special power. (3m) If the spouse is successful in an action to reach fraudulent property arrangements involving marital property, recovery is limited to the surviving spouse’s interest in the marital property. Other rules of this chapter apply so far as possible. Recovery forfeits any power of appointment which the surviving spouse possesses over the remaining portion of the fraudulently arranged marital property, except a special power. (4) The surviving spouse has no rights against any person dealing with the property without actual knowledge, or receipt of written notice, of the claim of the spouse. A person who has knowledge of facts and circumstances sufficient to put the person on inquiry as to a claim by the spouse does not have actual knowledge and is not required to make further inquiry. This subsection does not protect a gratuitous donee from the original beneficiary of the fraudulent arrangement. (5) Every such suit must be brought within 3 years of decedent’s death, but may be barred by laches at an earlier date. History: 1983 a. 186; 1985 a. 37 s. 187; 1993 a. 486; 2005 a. 216.