766.58 Marital property agreements.

799 words·~4 min read·/wi/chapter-766/766-58-2

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)A marital property agreement shall be a document signed by both spouses. Only the spouses may be parties to a marital property agreement. A marital property agreement is enforceable without consideration.

(2)A marital property agreement may not adversely affect the right of a child to support.

(3)Except as provided in ss. 766.15 , 766.55

(4m), 766.57

(3)and 859.18

(6), and in sub.

(2), in a marital property agreement spouses may agree with respect to any of the following:

(a)Rights in and obligations with respect to any of either or both spouses’ property whenever and wherever acquired or located.

(b)Management and control of any of either or both spouses’ property.

(c)Disposition of any of either or both spouses’ property upon dissolution or death or upon the occurrence or nonoccurrence of any other event.

(d)Modification or elimination of spousal support, except as provided in sub.

(9).

(e)Making a will, trust or other arrangement to carry out the marital property agreement.

(f)Providing that upon the death of either spouse any of either or both spouses’ property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition. Any such provision in a marital property agreement is revoked upon dissolution of the marriage as provided in s. 767.375

(1). If a marital property agreement provides for the nontestamentary disposition of property, without probate, at the death of the 2nd spouse, at any time after the death of the first spouse the surviving spouse may amend the marital property agreement with regard to property to be disposed of at his or her death unless the marital property agreement expressly provides otherwise and except to the extent property is held in a trust expressly established under the marital property agreement.

(g)Choice of law governing construction of the marital property agreement.

(h)Any other matter affecting either or both spouses’ property not in violation of public policy or a statute imposing a criminal penalty.

(3m)Chapter 854 applies to transfers at death under a marital property agreement.

(4)A marital property agreement may be amended or revoked only by a later marital property agreement.

(5)Persons intending to marry each other may enter into a marital property agreement as if married, but the marital property agreement becomes effective only upon their marriage.

(6)A marital property agreement executed before or during marriage is not enforceable if the spouse against whom enforcement is sought proves any of the following:

(a)The marital property agreement was unconscionable when made.

(b)That spouse did not execute the marital property agreement voluntarily.

(c)Before execution of the marital property agreement, that spouse:

1. Did not receive fair and reasonable disclosure, under the circumstances, of the other spouse’s property or financial obligations; and

2. Did not have notice of the other spouse’s property or financial obligations.

(a)Unless the marital property agreement expressly provides otherwise, a marital property agreement that classifies a deferred employment benefit plan or an individual retirement account as marital property does not affect the operation of s. 766.62

(5).

(b)Unless the marital property agreement expressly provides otherwise, marital property agreement that classifies as marital property the noninsured spouse’s interest in a policy that designates the other spouse as the owner and insured does not affect the operation of s. 766.61

(7). In this paragraph, “owner” has the meaning given in s. 766.61

(a)and “policy” has the meaning given in s. 766.61

(c).

(c)Unless the marital property agreement expressly provides otherwise, a marital property agreement that classifies digital property as marital property does not affect the operation of s. 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.

(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.