Wisconsin Intestate Succession: Spouse, Children, and Other Heirs

When a Wisconsin resident dies without a will, Wisconsin intestate succession decides who inherits. The surviving spouse comes first, then children, then parents, then siblings, then more distant relatives, in a fixed order set by Chapter 852 of the Wisconsin Statutes. Because Wisconsin is a marital property state, the spouse’s share depends on whether the decedent had children from someone other than that spouse, and the rules can produce results that surprise blended families.

What Property Actually Passes Under These Rules

Intestate succession only governs probate assets: property the decedent owned individually, without a built-in transfer mechanism. Life insurance paid to a named beneficiary, retirement accounts with beneficiary designations, and property held in joint tenancy with right of survivorship skip probate entirely and go to the named person or surviving co-owner, no matter what the intestacy statute would otherwise say.

Marital property adds another layer. When one spouse dies, the surviving spouse already owns their undivided half of each item of marital property, and that half is not part of the probate estate at all.¹ Only the decedent’s half of marital property, plus any individual (non-marital) property the decedent owned, forms the estate that passes under intestate succession. People routinely overestimate or underestimate “the estate” by forgetting this split.

Debts, taxes, funeral costs, and administrative expenses come out of the estate before anything reaches the heirs. The shares described below apply to what’s left.

What the Surviving Spouse Inherits

The surviving spouse sits at the top of the hierarchy, and Wisconsin extends the same treatment to a registered domestic partner.² The share itself splits into two scenarios.

If the decedent had no children, or if every child of the decedent is also a child of the surviving spouse, the spouse inherits the entire probate estate.²

If one or more of the decedent’s children are not also children of the surviving spouse, the picture changes. The spouse receives one-half of the decedent’s non-marital property. The decedent’s half of the marital property does not go to the spouse at all; it passes to the decedent’s children.² The spouse still owns their own half of the marital property outright, so they aren’t left empty-handed, but the decedent’s half skips them. This is the single biggest reason blended families get caught off guard by intestacy.

One timing rule matters here. An heir must outlive the decedent by at least 120 hours (five days) to inherit. If survival by that margin can’t be established, the law treats the heir as having predeceased the decedent. For spouses who die in the same accident, each half of the marital property is then distributed as if it were that spouse’s own individual property.³

What the Children Inherit

If there is no surviving spouse, the children divide the entire estate equally. If a spouse survives but some or all of the children are from another relationship, the children take the portion that doesn’t pass to the spouse under the rule above.

Wisconsin uses per stirpes distribution among descendants. If one of the decedent’s children died before the decedent but left children of their own, those grandchildren split the share their parent would have received.²

Adopted Children

A legally adopted child is treated the same as a birth child of the adoptive parents for inheritance purposes, as long as at least one qualifying condition is met: the decedent is the adoptive parent or the adopted child, the adoption occurred while the child was a minor, or the adoptive parent raised the child in a parent-like relationship beginning on or before the child’s 15th birthday. Once adopted, the child generally stops being treated as a child of the birth parents for inheritance, with narrow exceptions when a birth parent has died and the surviving birth parent’s new spouse adopts the child.⁴

Stepchildren

Stepchildren who were never legally adopted have no inheritance rights under Wisconsin intestate succession. A stepparent who intended to leave assets to a stepchild but never wrote a will leaves that child with no legal claim to the estate.

Children Born Outside of Marriage

A child born to unmarried parents inherits automatically from and through the mother. Inheritance from and through the father requires that paternity be legally established in one of three ways: a court adjudication in a paternity proceeding, an admission by the father in open court, or a written acknowledgment signed by the father. Without one of those before the father’s death, the child has no path to inherit under the intestacy statute. The father and his relatives can likewise only inherit from the child if paternity was established through a court proceeding or a determination under Wisconsin’s paternity statutes.⁵

Posthumous Children

A child conceived before the decedent’s death but born afterward has the same rights as any other heir. Wisconsin law allows a posthumous child to compel distribution of personal property, seek partition of real estate, and recover their share from beneficiaries who have already been paid.⁶ That child also shares proportionally in the obligation to pay the decedent’s creditors.

When There Is No Spouse or Children

If no spouse, domestic partner, children, or descendants of children survive, the estate moves outward through the family tree in a fixed sequence.

Parents inherit next, equally. If only one parent survives, that parent takes the full amount.²

If both parents are gone, the estate passes equally to the decedent’s brothers and sisters. Half-siblings are treated the same as full siblings. A sibling who predeceased the decedent is represented by their own children (the decedent’s nieces and nephews), who split that sibling’s share per stirpes.²

Beyond that, the estate goes to grandparents, then to aunts, uncles, and eventually cousins, with the statute dividing between the maternal and paternal sides of the family.

If the court cannot locate any qualifying heir after working through every tier, the estate escheats to the State of Wisconsin and is added to the capital of the school fund.² Escheat is rare in practice. Courts will sometimes appoint a genealogical researcher to track down distant relatives before concluding none exist.

When an Heir Is Disqualified

A person who unlawfully and intentionally kills the decedent forfeits all inheritance rights. Wisconsin’s slayer statute treats the killer as having predeceased the decedent, so the killer’s share passes to whoever would have inherited if the killer did not exist. A criminal conviction for the killing is conclusive proof, but even without a conviction, the probate court can make its own finding under a preponderance of the evidence standard. The disqualification reaches beyond the intestate share: it severs joint tenancy, revokes beneficiary designations, and eliminates any statutory rights the killer would have received because of the death. Assisted suicide is explicitly excluded from the definition of unlawful and intentional killing for these purposes.⁷

Shortcuts for Smaller Estates

Not every intestate estate has to go through full probate. If the decedent’s property subject to administration in Wisconsin does not exceed $50,000 in gross value, an heir can collect money, receive property, and transfer titles by filing a sworn affidavit instead of opening a formal probate case. The affidavit must describe the property, state the total value, and disclose whether the decedent or their spouse ever received certain government benefits such as Medicaid.⁸

For estates that don’t exceed $50,000 after subtracting secured debts, the court can also use summary settlement or summary assignment to close things out without appointing a personal representative. Summary settlement is available when the estate’s value doesn’t exceed administrative costs and priority claims, or when the estate is under $50,000 and the decedent is survived by a spouse, domestic partner, or minor children. Summary assignment covers the remaining under-$50,000 estates.⁹

A Note on Taxes

Wisconsin does not impose a state estate tax for decedents dying after December 31, 2007, and has not imposed a state inheritance tax since 1992.¹⁰ The federal estate tax exemption for 2026 is $15,000,000 per individual, so most Wisconsin estates owe no federal estate tax either.¹¹ Final income tax returns for the decedent are still required, and if the estate generates income during administration, a separate fiduciary return may be as well.

1
Wisconsin State Legislature. Wisconsin Code 861 – Ownership of Marital Property at Death
2
Wisconsin State Legislature. Wisconsin Code 852 – Basic Rules for Intestate Succession
3
Wisconsin State Legislature. Wisconsin Code 854 – Requirement of Survival by 120 Hours
4
Wisconsin State Legislature. Wisconsin Code 854.20 – Effect of Adoption
5
Wisconsin State Legislature. Wisconsin Code 852 – Status of Child Born to Unmarried Parents for Purposes of Intestate Succession
6
Wisconsin State Legislature. Wisconsin Code 877 – Rights and Liabilities of Posthumous Child and Witness to Will
7
Wisconsin State Legislature. Wisconsin Code 854 – Beneficiary Who Kills Decedent
8
Wisconsin State Legislature. Wisconsin Code 867.03 – Transfer by Affidavit
9
Wisconsin State Legislature. Wisconsin Code 867 – Probate Summary Procedures
10
State of Wisconsin Department of Revenue. Estates, Trusts, and Fiduciaries
11
Internal Revenue Service. What’s New – Estate and Gift Tax