Property division, though logically sound, may tend to invoke the question of constitutionality. Any statute that drastically changes the definition of the ownership of property, such as the act of marital distribution, tends to generate debate among the parties involved. Many feel that certain property rights should remain exclusively their property. This is most always not the case. This, although may seem illogical or unfair, is actually an attempt to distribute property evenly among the divorcing parties. The definition of marital distributable property is done through first establishing the identity and character of the property in and of, itself.

Two provisions of the Act have garnered particular attention because they impact vital property rights that were in place prior to the Act’s effective date. The first provision includes aspects of income earned or accrued following the Act’s effective date in regards to property obtained pre-effective date. The second provision has to do with deferred marital property regulations and standards. To date, there has never been a documented case which challenges the constitutionality of the Act.

The general problem is when there is a legislative change in the rights to property between the divorcing parties can sometimes be seen as taking property from one person, and transferring the vested right to possess, use, dispose, and/or otherwise enjoy said property, to another. The validity becomes an issue, however, in whether a retroactive distribution is either without due process, or if it violates the Privileges and Immunities Clause of the 14th Amendment, or whether it is justified within the police power of the state when it comes to the regulation of the marriage, distribution of marital property upon dissolution of the marriage, or even the devolution of property at death.

When it comes to deferred property, the Wisconsin Court of Appeals holds that under the US Constitution, there is no right to dispose of property by will. Although, there are many Wisconsin court decisions that have demonstrated that Wisconsin residents do, in fact, have that right under the Wisconsin constitution. These findings are based on article I, section 1 of the Wisconsin Constitution, which states, “all people are born equally free and independent, and have certain rights; among these are life, liberty and the pursuit of happiness.…”

Although, the right to will has been demonstrated to be subject to regulation by the legislature. The granting of an elective right to take a portion of a deceased spouse’s estate is considered a reasonable regulation of one’s inherent right to dispose of their property in regards to a will. Debatably, under former sections 861.02 and 861.03 and provisions under current chapter 861, which were created to replace the elective right in sections 861.01–.05, the same thing is true for the elections provided a surviving spouse.

Trisha Festerling, J.D.

Family Law Attorney

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