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Wisconsin Intestate Succession: Who Inherits Without a Will
Support GuideWisconsin11 min read

Wisconsin Intestate Succession: Who Inherits Without a Will

Who inherits under Wisconsin intestate succession: the spouse takes all unless the decedent left issue from outside the marriage, under Wis. Stat. 852.01.

By Settled Editorial

When a Wisconsin resident dies without a will, the basic rules for intestate succession in Chapter 852 of the Wisconsin Statutes decide who inherits. This guide answers one question: who gets what. It maps the distribution rules under Wis. Stat. 852.01 and the sections around it. The short version: the surviving spouse usually takes the entire estate, but if the decedent left issue who are not also the spouse's children, the spouse takes one-half of the decedent's property other than marital property, and the issue take the rest.

Wisconsin is a marital property (community property) state, so the spouse's share rests on top of a rule that already gives a surviving spouse half of the couple's marital property before intestacy even begins. That makes Wisconsin different from most states, and it is the single most important fact to get right. This guide covers who inherits an intestate estate. For how an estate is opened and administered when there is no will, start with the Wisconsin probate guide.

What Intestate Succession Covers

Dying without a will is called dying "intestate." When that happens, a will does not name the heirs, so Wisconsin statute does. The rules are the basic rules for intestate succession in Wis. Stat. 852.01, and they run in a fixed order of family classes.

Intestate succession reaches only probate property, meaning assets that pass through the estate. Assets with a named beneficiary, a payable-on-death tag, survivorship rights, or trust ownership pass outside intestacy and do not follow these rules. So a life insurance policy with a named beneficiary, or a transfer-on-death account, goes to that person regardless of the intestate classes. To see which assets skip probate entirely, read how to avoid probate in Wisconsin.

Before any of the classes inherit, Wisconsin's marital property rule splits the couple's property, which the next section explains.

Marital Property Splits First

Wisconsin treats most property a married couple owns as marital property, and each spouse owns a present undivided one-half interest in each item of it. All property of spouses is presumed to be marital property, and each spouse has a present undivided one-half interest in each item of marital property under Wis. Stat. 766.31. Property a spouse owned before the marriage, or received during the marriage by gift or inheritance, is individual property of that spouse rather than marital property.

At death, this split matters before intestacy runs. The surviving spouse keeps their own undivided one-half interest in each item of marital property, and that half is not part of the estate. Only the decedent's one-half of the marital property, plus the decedent's individual property, passes through the estate. (Source: Wis. Stat. 861.01.)

So when you read the intestate shares below, remember the surviving spouse usually already holds half of the marital property by ownership, separate from anything the intestate classes give them. The classes divide what is left in the decedent's estate.

The Surviving Spouse Share

The spouse's share under Wis. Stat. 852.01(1)(a) turns on a single fact: whether the decedent left issue (children and their descendants) who are not also the surviving spouse's issue. Wisconsin gives a surviving domestic partner under Chapter 770 the same intestate share as a spouse.

Family situationSurviving spouseDecedent's issue
No surviving issueEntire estateNone
All issue are shared with the spouseEntire estateNone
One or more issue are not the spouse's, such as a child from a prior relationshipOne-half of the decedent's property other than marital property and property held equally as tenants in commonThe balance, per stirpes

So the spouse takes the entire estate when the couple's children are the only issue, or when there are no issue at all. The one-half rule kicks in only when the decedent had a child or grandchild outside the relationship with the surviving spouse. In that case, the spouse takes one-half of the decedent's property other than marital property and property the couple held equally as tenants in common. The decedent's half of the marital property and the rest of the individual property pass to the issue per stirpes. This is Wisconsin's blended-family rule, and it protects the marital property half for the spouse while routing other property to the decedent's children. (Source: Wis. Stat. 852.01.)

When There Is No Surviving Spouse

With no surviving spouse or domestic partner, or for the portion that does not pass to one, the estate descends through a fixed order of classes under Wis. Stat. 852.01(1). Each class must be empty before the next inherits.

  1. Issue. The decedent's children and their descendants take the share not passing to a spouse, or the entire estate if there is no spouse, per stirpes. A deceased child's share passes down that child's line.
  2. Parents. With no issue, the estate passes to the decedent's surviving parents or parent.
  3. Brothers and sisters and their issue. With no issue and no surviving parent, the estate passes to the decedent's brothers and sisters and the issue of any deceased brother or sister, per stirpes.
  4. Grandparents and their issue. With none of the above, the estate splits between the maternal and paternal sides. One-half passes to the grandparents and their issue on one side and one-half to the grandparents and their issue on the other side.

If a class has living members, the search stops there. The estate does not skip a living parent to reach a sibling, and it does not skip a living sibling to reach a cousin.

Representation: How a Deceased Heir's Share Passes Down

When an heir who would have inherited dies before the decedent but leaves descendants, those descendants step into that heir's place. Wisconsin calls this representation, and intestacy distributes it per stirpes, meaning by branch of the family.

Wisconsin intestacy passes to issue per stirpes under Wis. Stat. 852.01(1)(b), which applies the per stirpes rule in Wis. Stat. 854.04(1). Under that rule, the property is divided into equal shares at the generation of the decedent's children, whether or not any child survives. Each surviving child takes one share, and each deceased child who left surviving issue is allocated one share, which then passes down that child's line in the same way. The shares always form at the children's generation, not at the nearest generation that happens to have a living member.

A worked example makes this concrete. Say a decedent with no spouse had three children, and one child died first leaving two children of their own. The estate divides into three equal shares. The two living children each take one-third. The deceased child's one-third passes to that child's two children, who split it, so each grandchild takes one-sixth. The two grandchildren do not each take a full child's share; they divide the single share their parent would have received.

Half-Blood Relatives Inherit Equally

When the heirs are collateral relatives, such as siblings, aunts, uncles, or cousins, people often ask whether a half-blood relative inherits less. In Wisconsin, the answer is no. A half-blood relative shares only one parent with the connecting ancestor, such as a half-sibling who shares one parent with the decedent, but Wisconsin does not cut that relative's share.

Under Wis. Stat. 854.21(4), terms of family relationship that do not differentiate between the half blood and the whole blood are construed to include both. So a half-sibling inherits the same share as a whole-blood sibling in the same degree. If a decedent with no spouse, no issue, and no parents is survived by one whole-blood sibling and one half-blood sibling, the two split the estate evenly. This is a clear point of difference from many other states, which reduce a half-blood share. (Source: Wis. Stat. 854.21.)

Survivorship, Afterborn Heirs, and Nonmarital Children

Three more rules can change the final math.

The 120-hour survival rule. An heir must outlive the decedent by at least 120 hours to inherit. Under Wis. Stat. 854.03, an heir who does not survive the decedent by 120 hours is treated as having predeceased the decedent, so that heir's share passes as if the heir had died first. This prevents property from passing through an heir who dies almost at the same time as the decedent.

Afterborn heirs. A relative conceived before the decedent's death but born after still inherits. Under Wis. Stat. 854.21(5), a person conceived before the relevant time and later born alive takes as a class member if that person survives at least 120 hours after birth. So a child in utero at the decedent's death is counted as an heir.

Children of unmarried parents. A nonmarital child inherits from the mother in all cases. The child inherits from the father only when paternity is established, such as by an adjudication of paternity, the father's admission in open court, or the father's written acknowledgment. (Source: Wis. Stat. 852.05.)

What Happens If No Heir Exists

Wisconsin's intestate classes reach a wide circle of relatives, so an estate rarely has no heir. If there are no heirs of any class, the net estate escheats to the state and is added to the capital of the school fund under Wis. Stat. 852.01(3). Escheat is the last resort, not the default. Dying without a will does not send the estate to the state in the ordinary case; it sends the estate down the family tree first.

How the Pieces Fit Together

Use this sequence to read an intestate distribution:

  1. Apply the marital property split first. The surviving spouse keeps their own undivided one-half of marital property. Only the decedent's half of marital property, plus the decedent's individual property, enters the estate.
  2. Separate probate property from assets that pass by beneficiary, survivorship, or trust. Only probate property follows the intestate classes.
  3. Apply the spouse share under 852.01(1)(a): the entire estate, unless a non-shared child triggers the one-half rule on the decedent's non-marital property.
  4. For any portion not passing to a spouse, run the class order: issue, then parents, then brothers and sisters and their issue, then the maternal and paternal grandparents and their issue.
  5. Apply representation per stirpes for any deceased heir who left issue, and remember half-blood collateral kin inherit equally.
  6. Adjust for the 120-hour survival rule, afterborn heirs, and the nonmarital child rules if they apply.

If the probate estate is small, the family may settle it with the Wisconsin small estate transfer by affidavit path rather than full administration, though the same shares determine who collects. Whoever serves still follows the Wisconsin personal representative duties that govern gathering assets, paying debts, and distributing the shares, and any creditor claims against the estate are paid before heirs receive their shares.

When to Get Help

Some intestate distributions are simple to map from the statute. Others need a licensed Wisconsin attorney, especially when:

  • a child from a prior relationship changes the spouse's share
  • marital property and individual property must be separated to set the spouse's half
  • a deceased heir's branch raises a representation question
  • a nonmarital child's paternity must be established to inherit from the father
  • an heir cannot be located or the family tree is unclear

This guide helps you organize the source-backed shares and the right questions. A lawyer can advise on rights, disputes, and a specific estate. If you want the broader settlement picture, the Wisconsin probate guide and the Wisconsin will requirements guide cover how an estate moves through the courts and what a valid will would have changed.

This guide is general information about Wisconsin estates. It is not legal advice. Confirm anything that affects your situation with the register in probate at your county circuit court or a licensed Wisconsin attorney.

Sources

Information current as of June 13, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Wisconsin can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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