854.18 Order in which assets apportioned; abatement.

(1)

(a) Except as provided in sub. (3) or in connection with the deferred marital property elective share amount of a surviving spouse who elects under s. 861.02, the share of a surviving spouse who takes under s. 853.12, or the share of a surviving child who takes under s. 853.25, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

1. If the governing instrument is a will, property subject to intestacy.

2. Residuary transfers or devises under the governing instrument.

3. General transfers or devises under the governing instrument.

4. Specific transfers or devises under the governing instrument.

(b) For purposes of abatement, a general transfer or devise charged on any specific property or fund is a specific transfer to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, it is a general transfer to the extent of the failure or insufficiency.

(2)

(a) Abatement within each classification is in proportion to the amount of property that each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the governing instrument.

(b) If the subject of a preferred transfer is sold or used incident to administration of an estate, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

(3) If the governing instrument expresses an order of abatement, or if the transferor's estate plan or the purpose of the transfer, as expressed, implied, or construed through extrinsic evidence, would be defeated by the order of abatement under sub. (1), the shares of the distributees abate as necessary to give effect to the intention of the transferor.

History: 1997 a. 188; 2005 a. 216.