In a common law property system, the law generally provides a mechanism - the surviving spouse's elective share - which attempts to ensure that a decedent does not completely disinherit his or her surviving spouse.1 In a community property system, this mechanism is sometimes considered to be unnecessary because the surviving spouse typically has vested ownership in half of most assets held by the spouses.2 However, this view is only correct for long term residents,3 who accumulated their property under the community property regime. Many of the community property states have experienced substantial in-migration, often by people who are late in their careers or who have retired. For these couples, the core community property system provides no protection to a non-titled spouse with regard to quasi-community property - property acquired with earnings during the marriage, but before the couple lived in a community property jurisdiction.' Of the eight states which have long-standing community property systems, four - California, Idaho, Louisiana, and Washington - have recognized this problem and developed statutory rights to quasicommunity property at the death of the titled spouse.5 These states provide that upon the death of a spouse, at least the quasi-community property held by the decedent and subject to probate is treated the same as community property, i.e., one half of that property belongs to the surviving spouse, and the decedent is free to dispose of the other half." The Uniform Marital Property Act (UMPA)7 uses substantially the same approach, under its concept of "deferred marital property."' Wisconsin, the ninth community property state, adopted its marital property system effective January 1, 1986. As a recent convert to community property, Wisconsin is in a unique situation; for several decades, the majority of its married citizens will essentially be "migrants" to a community property state, with significant amounts of property acquired during the marriage, but under Wisconsin's prior common law property regime. Although the Wisconsin Marital Property Act (WMPA)s is substantially based on UMPA, one of the significant departures from the Uniform Act was the decision not to treat deferred marital property like marital property at the death of a spouse. Instead Wisconsin opted for a pair of elective rights provisions: One for probate property, based on the common law property spousal election then-current in the state; and one for nonprobate property, based on the augmented estate election in the then-current Uniform Probate Code. Under the Wisconsin statutes, all property of spouses that would have been marital property (Wisconsin's equivalent of community property) ? if acquired under the WMPA is defined as "deferred marital property" (Wisconsin's equivalent of quasi-community property).11 At the death of a spouse, however, the surviving spouse does not acquire a vested right in deferred marital property held by the decedent.12 Instead, the surviving spouse has the right to elect to receive a portion of the decedent's deferred marital property,"3 a right which is subject to a bar or offsets,14 depending on the type of property involved and how much property the surviving spouse has already received from the decedent. This Article will critique the Wisconsin deferred marital property system and propose an alternative which draws on the elective share provisions of the new Uniform Probate Code ." While our proposal may be of primary interest to readers concerned with Wisconsin law, we believe that because it is based on the UPC, the proposal would be an appropriate model for the four remaining community property states - Arizona, New Mexico, Nevada, and Texas - that do not deal with quasi-community property at the death of a spouse.1" In addition, because our analysis of the Wisconsin system identifies some problems - especially the problem of quasi-community property held by the surviving spouse - that exist in all current quasi-community systems in the U.S., and because none of these systems appear to cover all non-probate quasi-community property, we hope that readers familiar with the quasi-community property systems of California, Idaho, Louisiana, and Washington will find it useful as well. 8
