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Spousal Elective Share Law in Wisconsin

Wisconsin is a marital (community) property state: the surviving spouse keeps a one-half interest in marital property and can also elect up to 50% of the augmented deferred marital property estate within 6 months after death.

Last checked . General information, not legal advice.

Wisconsin at a glance

Elective share
Own 1/2 of marital property, plus up to 50% of deferred estate
Up to 50% of the augmented deferred marital property estate, not of the whole estate.
Deadline to elect
6 months after death
The spouse files a petition for the election within 6 months after death. The court can extend the time in limited cases.
Community property state
Yes (marital property)

Sources

Last checked

The rules in Wisconsin

How much can a surviving spouse claim in Wisconsin if left out of the will?

Elective share in Wisconsin: Own 1/2 of marital property, plus up to 50% of deferred estate. Up to 50% of the augmented deferred marital property estate, not of the whole estate.

What is the deadline to claim the elective share in Wisconsin?

Deadline to elect in Wisconsin: 6 months after death. The spouse files a petition for the election within 6 months after death. The court can extend the time in limited cases.

Is Wisconsin a community property state?

Yes (marital property). Community property state in Wisconsin: yes (marital property).

Where do the Wisconsin spousal elective share laws come from?

The rules above come from Wis. Stat. 861.01, Wis. Stat. 861.02 and Wis. Stat. 861.08. Each source is linked on this page. We last checked them in October 2026.

What this means in practice

The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.

Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.

Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.

General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.