766.62 Classification of deferred employment benefits.

(1)

(a) Except as provided in par. (b), a deferred employment benefit attributable to employment of a spouse occurring after the determination date is marital property.

(b) A deferred employment benefit attributable to employment of a spouse occurring after the determination date is mixed property if, after the determination date and during the period of employment giving rise to the benefit, the employed spouse or his or her spouse are at any time not domiciled in this state. The marital property component of that mixed property is the amount which results from multiplying the entire benefit by a fraction, the numerator of which is the period of employment giving rise to the benefit that occurred after the determination date and during marriage and the denominator of which is the total period of employment giving rise to the benefit.

(2) A deferred employment benefit attributable to employment of a spouse occurring partly before and partly after the determination date is mixed property. The marital property component of that mixed property is the amount which results from multiplying the entire benefit by a fraction, the numerator of which is the period of employment giving rise to the benefit that occurred after the determination date and during marriage and the denominator of which is the total period of employment giving rise to the benefit.

(2m) Unless provided otherwise in a decree or marital property agreement, a mixed property deferred employment benefit shall be valued as of a dissolution or an employee spouse's death.

(3) Ownership or disposition provisions of a deferred employment benefit plan which conflict with sub. (1) or (2) are ineffective between spouses or former spouses or between a surviving spouse and a person claiming under a deceased spouse's disposition at death.

(4)

(a) If a deferred employment benefit plan administrator makes payments or takes actions in accordance with the plan and the administrator's records, the administrator is not liable because of those payments or actions.

(b) If a deferred employment benefit plan administrator has reason to believe that a dispute exists as to the rights of parties, or their successors, to a deferred employment benefit, the deferred employment benefit plan administrator may do any of the following:

1. Deposit the benefit funds with a court having jurisdiction of the proceedings. The court shall hold the funds and, upon determination of the owner, shall order disbursement in accordance with the determination. Property deposited with the court discharges the deferred employment benefit plan administrator from all claims for the benefit funds.

2. Refuse to transfer any funds from the plan to any person until the administrator receives from a court written documentation that the dispute has been resolved.

3. Make a payment under par. (a).

(c) The protection afforded a deferred employment benefit plan administrator under this subsection does not affect the rights of parties or their successors in disputes concerning the beneficial ownership of deferred employment benefits.

(5) Except as provided in s. 854.14 (3m) (c), if the nonemployee spouse predeceases the employee spouse, the marital property interest of the nonemployee spouse in all of the following terminates at the death of the nonemployee spouse:

(a) A deferred employment benefit plan.

(b) Assets in an individual retirement account that are traceable to the rollover of a deferred employment benefit plan.

History: 1983 a. 186; 1985 a. 37 ss. 128, 187; 1987 a. 393; 1991 a. 301; 1993 a. 160; 2005 a. 216.

NOTE: 1991 Wis. Act 301, contains legislative council notes.

The termination under sub. (5) of a marital property interest in pension benefits did not prevent the application of the equitable principal that a murderer should not profit from the crime. The trial court acted properly in imposing a constructive trust on the decedent's marital property interest in the murderer's pension benefits. Estate of Hackl v. Hackl, 231 Wis. 2d 43, 604 N.W.2d 579 (Ct. App. 1999), 99-0499.