861.35 Special allowance for support of spouse or domestic partner and support and education of minor children.

(1m) If the decedent is survived by a spouse, domestic partner, or by minor children, the court may order an allowance for the support and education of each minor child until he or she reaches a specified age, not to exceed 18, and for the support of the spouse or domestic partner. This allowance may be made whether the estate is testate or intestate. If the decedent is not survived by a spouse or domestic partner, the court also may allot directly to the minor children household furniture, furnishings, and appliances. The court may not order an allowance under this section if any of the following applies:

(a) The decedent has amply provided for each minor child and for the spouse or domestic partner by the transfer of probate or nonprobate assets, or support and education have been provided for by any other means.

(b) In the case of minor children, the surviving spouse or surviving domestic partner is legally responsible for support and education and has ample means to provide them in addition to his or her own support.

(c) In the case of the surviving spouse or surviving domestic partner, he or she has ample means to provide for his or her support.

(2) The court may set aside property to provide an allowance and may appoint a trustee to administer the property, subject to the continuing jurisdiction of the court. If a child dies or reaches the age of 18, or if at any time the property held by the trustee is no longer required for the support of the spouse or domestic partner or the support and education of the minor child, any remaining property is to be distributed by the trustee as the court orders in accordance with the terms of the decedent's will or to the heirs of the decedent in intestacy or to satisfy unpaid claims of the decedent's estate.

(3) In making an allowance under this section, the court shall consider all of the following:

(a) The effect on claims under s. 859.25. The court shall balance the needs of the spouse, domestic partner, or minor children against the nature of the creditors' claims in setting the amount allowed under this section.

(b) The size of the estate.

(c) Other resources available for support.

(d) The existing standard of living.

(e) Whether the provisions of a marital property agreement will create a hardship for the surviving spouse.

(f) Any other factors that the court considers relevant.

(4) The court may order that the allowance to the surviving spouse or surviving domestic partner, not including any allowance for the support and education of minor children, be applied in satisfaction of any of the following:

(a) Any entitlement of the surviving spouse or surviving domestic partner under s. 853.12.

(b) Any right of the surviving spouse or surviving domestic partner to elect under s. 861.02 (1).

History: 1971 c. 213 s. 5; 1983 a. 186; 1991 a. 301; 1997 a. 188; 2005 a. 216; 2009 a. 28.

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