Intestate Succession

Carroll v Ansley, 628 NW2d 411 (Wis App Ct 2001).

Facts: Alma and Larnel Carroll were married. Alma had two children from a previous marriage. On May 15, 1996, Alma died intestate. All of the property owned by Alma and Larnel was marital property. Pursuant to Wis. Stat. § 852.01, governing intestate succession of property, the circuit court awarded half the property to Larnel and split the other half between Alma's two children. Larnel appealed the decision of the trial court. He argued that the circuit court erred in interpreting the statute. He contended that the statute applies only to the division of nonmarital property, and he should have received all of the property.

Holding: The appellate court affirmed the decision of the circuit court. Wis. Stat. § 861.01 states that upon the death of a spouse, the surviving spouse retains an undivided one-half interest of the marital property. Wis. Stat. § 852.01 governs intestate succession. Because all their property was marital property, Larnel automatically received one-half under Wis. Stat. § 861.01. However, because Alma died intestate, the remaining one-half is distributed according to the rules of intestate succession. Wis. Stat. § 852.01(1) states, "any part of the net estate of a decedent that is not disposed of by will passes to the decedent's surviving heirs as follows: (a) To the spouse: ... 2. If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of decedent's property other than marital property." The intestate succession statute does not entitle Larnel to any marital property beyond that entitled to him under Wis. Stat. § 861.01. Wis. Stat. § 852.01(1)(b) confers to the children "the share of the estate not passing to the spouse under paragraph (a)." Because Larnel was not entitled to any of the remaining one-half under paragraph (a), the entire one-half was conferred to the children. The plain language of the intestate succession statute is unambiguous. Therefore, the circuit court correctly conveyed one-half of the marital property to Alma's two children.

EDITOR'S NOTE: Under Illinois law, the outcome of this case would be the same. If there is a surviving spouse and surviving children of the decedent, the Illinois rules of descent and distribution convey "1/2 of the entire estate to the surviving spouse, and 1/2 to the decedent's descendants per stirpes." 755 ILCS 5/2-1(a). This includes real estate and personal property. The statute makes no distinction between marital and nonmarital property. Under this statute, Larnel would receive one-half of the estate, and the other half would be equally divided between the children.

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