Background
Errol Doerr died intestate, survived by his wife, Denise, and four children: Kaleb from an earlier relationship and Anna, Emma, and Samantha, whom Errol had with Denise. His estate included his interest in marital property, including a 159-acre property containing the family home.
Denise elected under Wisconsin law to receive Errol’s interest in the home. The circuit court ruled that Kaleb alone was entitled to the portion of Errol’s estate that did not pass to Denise, required Denise to pay Kaleb $275,000 for Errol’s interest in the home parcel, and ordered the remaining parcels sold, with half of the proceeds going only to Kaleb.
The Court’s Holding
The Wisconsin Court of Appeals reversed. It held that under Wis. Stat. § 852.01(1), the portion of an intestate decedent’s estate that does not pass to the surviving spouse passes to all of the decedent’s issue, per stirpes. Because Errol’s four children were all surviving issue, they must divide that portion equally; Kaleb was not entitled to it alone.
The court also held that Denise’s $275,000 payment for Errol’s interest in the home must be divided equally among all four children. And because Denise retained her own undivided one-half interest in the remaining marital-property parcels while the children inherited equal interests in Errol’s half, the probate court lacked authority under Wis. Stat. § 861.21 to order Denise to sell those parcels.
Key Takeaways
- A decedent’s “issue” includes all children, not only children from a prior relationship.
- When a surviving spouse takes the home, payment for the decedent’s interest goes to all entitled heirs under intestacy law.
- A probate court cannot compel sale of marital property in which the surviving spouse retains a non-estate one-half interest.
Why It Matters
The decision rejects an interpretation of Wisconsin intestacy law that would have excluded children shared by the decedent and surviving spouse whenever the decedent also had a child from an earlier relationship. It also clarifies the limits of a probate court’s authority when a surviving spouse elects to take a home from an intestate estate.