Wisconsin Statutes 49.682 – Recovery from estates; disease aids and funeral expenses
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Terms Used In Wisconsin Statutes 49.682
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Contract: A legal written agreement that becomes binding when signed.
- Decedent: A deceased person.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Land: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 990.01
- Lien: A claim against real or personal property in satisfaction of a debt.
- Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Personal property: All property that is not real property.
- Personal property: includes money, goods, chattels, things in action, evidences of debt and energy. See Wisconsin Statutes 990.01
- Personal representative: means a person, however denominated, who is authorized to administer a decedent's estate. See Wisconsin Statutes 990.01
- Probate: Proving a will
- Promulgate: when used in connection with a rule, as defined under…. See Wisconsin Statutes 990.01
- Property: includes real and personal property. See Wisconsin Statutes 990.01
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- real property: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 990.01
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- Sworn: includes "affirmed" in all cases where by law an affirmation may be substituted for an oath. See Wisconsin Statutes 990.01
- Tenancy in common: A type of property ownership in which two or more individuals have an undivided interest in property. At the death of one tenant in common, his (her) fractional percentage of ownership in the property passes to the decedent
(1) In this section:
(a) “Client” means a person who receives or received aid under s. 49.68, 49.683, or 49.685 or a person on whose behalf funeral, burial, or cemetery expenses aid was provided under s. 49.785.
(am) “Decedent” means a deceased client or a deceased nonclient surviving spouse, whichever is applicable.
(b) “Disabled” has the meaning given in s. 49.468 (1) (a) 1.
(c) “Home” means property in which a person has an ownership interest consisting of the person’s dwelling and the land used and operated in connection with the dwelling.
(d) “Nonclient surviving spouse” means any of the following:
1. A person who was married to a client when the client was receiving or received services or aid for which the cost may be recovered under sub. (2) (a) and who survived the client.
2. A person who was married to a client on whose behalf funeral, burial, or cemetery expenses aid was provided under s. 49.785, who was married to the client at the client’s death or when the client was receiving or received any of the benefits described in s. 49.785 (1c) that made the client an eligible recipient under s. 49.785, or at both times, and who survived the client.
(e) “Property of a decedent” means all real and personal property to which the client held any legal title or in which the client had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.
(2)
(a) Except as provided in par. (d), the department shall file a claim against the estate of a client, and against the estate of a nonclient surviving spouse, for the amount of aid under s. 49.68, 49.683, or 49.685 paid to or on behalf of the client.
(am) The department shall file a claim against the estate of a client, and against the estate of a nonclient surviving spouse, for the amount of aid under s. 49.785 paid to or on behalf of the client.
(b) The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.
(bm)
1. Property that is subject to the department’s claim under par. (a) or (am) in the estate of a client or in the estate of a nonclient surviving spouse is all property of a decedent that is included in the estate.
2. There is a presumption, consistent with s. 766.31, which may be rebutted, that all property in the estate of the nonclient surviving spouse was marital property held with the client and that 100 percent of the property in the estate of the nonclient surviving spouse is subject to the department’s claim under par. (a) or (am).
(c) The court shall reduce the amount of a claim under par. (a) or (am) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent’s heirs or the beneficiaries of the decedent’s will to retain the following personal property:
1. The decedent’s wearing apparel and jewelry held for personal use.
2. Household furniture, furnishings and appliances.
3. Other tangible personal property not used in trade, agriculture or other business, not to exceed in value the amount specified in s. 861.33 (1) (a) 4.
(d) A claim under par. (a) is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.
(e)
1. If the department’s claim is not allowable because of par. (d) and the estate includes an interest in real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in par. (a). The personal representative or petitioner for summary settlement or summary assignment of the estate shall record the final judgment as provided in s. 863.29, 867.01 (3) (h), or 867.02 (2) (h).
2. If the department’s claim is not allowable because of par. (d), the estate includes an interest in real property, including a home, and the personal representative closes the estate by sworn statement under s. 865.16, the personal representative shall stipulate in the statement that the real property is assigned subject to a lien in favor of the department for the amount described in par. (a). The personal representative shall record the statement in the same manner as described in s. 863.29, as if the statement were a final judgment.
(f) The department may not enforce a lien under par. (e) as long as any of the following survive the decedent:
1. A spouse.
2. A child who is under age 21 or disabled.
(fm) All of the following apply to a lien under par. (e) that the department may not enforce because of par. (f):
1. If the decedent’s surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.
2. The department shall release the lien in the circumstances described in s. 49.849 (4) (c) 2.
(g) The department may enforce a lien under par. (e) by foreclosure in the same manner as a mortgage on real property.
(3) The department shall administer the program under this section and may contract with an entity to administer all or a portion of the program, including gathering and providing the department with information needed to recover payment of aid provided under s. 49.68, 49.683, 49.685, or 49.785. All funds received under this subsection, net of any amount claimed under s. 49.849 (5), shall be remitted for deposit in the general fund.
(4)
(a) The department may recover amounts under this section for the provision of aid provided under s. 49.68, 49.683, or 49.685 paid on and after September 1, 1995, and for the provision of aid provided under s. 49.785 paid on or after July 14, 2015.
(b) The department may file a claim under sub. (2) (a) only with respect to a client who dies after September 1, 1995. The department may file a claim under sub. (2) (am) only with respect to a client who dies after July 14, 2015.
(5) The department shall promulgate rules establishing standards for determining whether the application of this section with respect to a claim under sub. (2) (a) would work an undue hardship in individual cases. If the department determines that the application of this section with respect to a claim under sub. (2) (a) would work an undue hardship in a particular case, the department shall waive application of this section in that case.
(6) The department may contract with or employ an attorney to probate estates to recover under this section the costs of care.