Wrongful Death Legal Recovery in Wisconsin: What You Need to Know

by Laine Carver, Associate Attorney

Losing a loved one is always difficult, but it can be especially devastating when their death was caused by someone else’s negligence or wrongdoing. In Wisconsin, families of the deceased may be able to recover damages through a wrongful death claim. Here’s what you need to know about wrongful death legal recovery in Wisconsin:

What is wrongful death?

Wrongful death occurs when someone dies as a result of another person’s negligence, recklessness, or intentional actions. Common examples of wrongful death include car accidents caused by drunk driving, medical malpractice, and workplace accidents.

Who can bring a wrongful death claim in Wisconsin?

Under Wisconsin law, a wrongful death claim can be brought by the personal representative of the deceased’s estate or by the deceased’s surviving spouse, domestic partner, children, or parents. Wisconsin Statutes section 895.04 states that “the action may be brought by the personal representative of the deceased.” The personal representative is typically named in the deceased’s will or appointed by the court if there is no will, as provided by Wisconsin Statutes section 851.60. The personal representative can file the claim on behalf of the deceased’s surviving spouse, children, parents, or other beneficiaries, as provided by Wisconsin Statutes section 895.04. In some cases, siblings, grandparents, or other relatives may also be able to bring a claim under Wisconsin law.

What damages can be recovered in a wrongful death claim?

In Wisconsin, damages in a wrongful death claim are divided into two categories: economic and noneconomic. Economic damages are damages that can be easily quantified and include things like medical expenses, funeral and burial costs, lost wages, and lost earning capacity. Medical expenses include any reasonable medical expenses related to the deceased’s injury or illness that resulted in their death. Funeral and burial costs include the reasonable expenses for the deceased’s funeral and burial. Lost wages refer to the deceased’s income that they would have earned had they lived, while lost earning capacity refers to the amount of income that the deceased would have been capable of earning throughout their lifetime had they not died. Economic damages may also include any other out-of-pocket expenses incurred as a result of the deceased’s death.

Noneconomic damages, on the other hand, are damages that are more difficult to quantify and include things like pain and suffering, loss of companionship, and emotional distress. Pain and suffering refer to any physical pain or emotional suffering experienced by the deceased before their death. Loss of companionship refers to the loss of the deceased’s companionship, society, affection, and consortium, as well as the loss of the deceased’s advice and guidance. Emotional distress includes the emotional pain, suffering, and mental anguish experienced by the surviving family members as a result of the deceased’s death.

Wisconsin Statutes section 895.04(4) imposes a cap on the amount of noneconomic damages that can be recovered in a wrongful death claim. The current cap is $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult. It’s important to note that the cap only applies to wrongful death claims and not to other types of personal injury claims.

How is fault determined in a wrongful death claim?

In Wisconsin, fault is determined using a modified comparative negligence standard. This means that the deceased’s fault, if any, is taken into account when determining damages in a wrongful death claim. If the deceased was partially at fault for the accident that caused their death, their damages will be reduced by the percentage of fault attributed to them. For example, if the deceased was found to be 20% at fault for the accident, their damages will be reduced by 20%. However, if the deceased was more than 50% at fault for the accident, their family will not be able to recover any damages. This is known as the 51% bar rule.  It’s important to note that fault is not always clear-cut in wrongful death cases, and determining fault can be a complex process that requires the assistance of an experienced attorney.

What is the statute of limitations for wrongful death claims in Wisconsin?

The statute of limitations for wrongful death claims in Wisconsin is generally three years from the date of the deceased’s death. However, if the death was caused by a motor vehicle accident, the statute of limitations is two years from the date of the accident. If the claim is not filed within this time frame, it will be barred and the family will not be able to recover damages.

Losing a loved one is never easy, and dealing with the legal aftermath of a wrongful death can be overwhelming. However, by working with an experienced attorney at Russell Law Offices, SC, and pursuing a wrongful death claim, you can hold the responsible parties accountable and obtain the justice and compensation your loved one deserves. The team at Russell Law Offices, SC has experience representing clients in wrongful death cases and can provide you with the guidance and support you need during this difficult time. Remember, time is of the essence in these cases, so don’t wait to take action. Contact Russell Law Offices, SC today to explore your legal options and take the first step towards healing and closure.

Dog bites can cause serious injuries and legal issues for all parties involved. In Wisconsin, the law governing dog bites is strictly enforced, and dog owners are held responsible for any damages caused by their dogs, regardless of negligence. If you are the victim of a dog bite incident in Wisconsin, it’s important to understand your legal rights and options for recovery.

Wisconsin Statutory Governance

Wisconsin’s dog bite law is governed by Wisconsin Statutes Section 174.02, which holds dog owners strictly liable for any injuries caused by their dog. This means that the owner of a dog is responsible for any damages caused by their dog biting someone, even if the owner was not negligent in controlling their dog. Furthermore, if the dog has bitten a person before, the owner of the dog is liable for two times the amount of damages.

Comparative Negligence Statute

Wisconsin’s comparative negligence statute, Wisconsin Statutes Section 895.045, also affects legal recovery for dog bites. The amount of compensation an injured person can recover may be reduced if they were partially at fault for the incident. For example, if the injured person provoked the dog or was trespassing on the owner’s property, their recovery may be reduced based on their degree of fault.

Legal Considerations for the Injured Party

If you are the victim of a dog bite incident in Wisconsin, there are several legal issues to consider:

1. Statute of Limitations: There is a statute of limitations for filing a personal injury claim in Wisconsin, which is typically three years from the date of the injury. It is important to file a claim within this timeframe, or else you may lose your right to seek compensation for your injuries.
2. Homeowner’s Insurance: In many cases, the owner of the dog will have homeowner’s insurance that covers dog bite incidents. It is important to determine if the owner has insurance coverage so that the best recovery for your injuries can happen.
3. Medical Treatment: It is important to seek medical treatment immediately after a dog bite incident. Not only is this necessary for your health and well-being, but it will also document the extent of your injuries and may be necessary to support your claim for compensation.

Seek Legal Advice

It is crucial to seek legal advice from an experienced personal injury attorney in Wisconsin to navigate the legal process and ensure that you receive the compensation you deserve. If you have been bitten by a dog in Wisconsin, contact the attorneys at Russell Law Offices, SC for a consultation. Our knowledgeable and compassionate team will work tirelessly to protect your rights and ensure you receive the best recovery possible. With eight offices located throughout southern Wisconsin, we are here to serve you.

Navigating Towards Success: The Importance of Having an Employee Handbook for Your Small Business

by Nathan Russell, Owner & Managing Attorney

Running a small business is like sailing a ship, and just like any sailor, you need a compass and a map to steer towards success. In the world of business, an employee handbook acts as both compass and map, guiding your crew towards a safe and productive journey. In this post, we’ll dive into the importance of having an employee handbook for your small business and how it can set the course for smooth sailing ahead.

Having an employee handbook is important for several reasons, especially for small businesses. Here are some reasons why:

1. Clearly defines expectations: An employee handbook provides a clear outline of what is expected from the employees in terms of their job responsibilities, code of conduct, policies, and procedures. This helps to ensure that all employees are aware of what is expected of them and reduces confusion and ambiguity.
2. Ensures consistency: With an employee handbook, policies and procedures can be standardized and applied consistently across the organization. This ensures that everyone is treated fairly and equally, and reduces the potential for discrimination or favoritism.
3. Helps with legal compliance: An employee handbook can help a small business comply with legal and regulatory requirements, such as state and federal employment laws, industry-specific regulations, and safety requirements. It can also help protect the business in case of legal disputes, as it can demonstrate that the business has a clear set of policies and procedures in place.
4. Improves communication: An employee handbook can also serve as a communication tool between the business and its employees. It can provide information about the company’s mission, values, and culture, as well as important benefits and resources available to employees.
5. Sets expectations for behavior: An employee handbook can also outline the company’s expectations for employee behavior, including policies on harassment, discrimination, and workplace safety. This can help create a positive work environment and prevent workplace issues from arising.

Overall, having an employee handbook can benefit a small business in many ways. It can help ensure consistency and legal compliance, improve communication, and set expectations for behavior, which can lead to a more productive and positive work environment.

Remember, your employee handbook is not a one-time document, but a living one. As your business grows and changes, your policies and procedures may need to be updated accordingly. By keeping your employee handbook up-to-date and making sure your crew is informed, you can steer your small business towards long-term success.  Russell Law Offices, S.C. has a full slate of Employment and Business Law Attorneys who can assist you on your business development voyage. Call our office at 608.448.3680 for more information today!

Powers of Attorney Explained

by Justin Brewer, Associate Attorney

A power of attorney, or POA, is a legal document that allows you to grant another person the authority to make decisions on your behalf. This person, commonly referred to as your “agent,” will make decisions and take actions as if they were you in the case you are not able to make those decisions yourself. POAs are an important part of planning for your future. What happens if you are incapacitated, and can’t make healthcare decisions for yourself? Who will make life-ending or life-prolonging decisions if you cannot? What if you can no longer manage your business or financial affairs on your own? POAs can resolve all of these questions, and give you peace of mind.

There are several types of POAs that you can create, but the two main categories include financial and health care. These give your agent specific authority to act on your behalf for financial decisions, or make healthcare choices, if you are incapacitated.

Financial POA

A Financial POA gives your chosen agent the authority to make financial decisions on your behalf. These can range from paying bills and expenses, or making deposits and withdrawals with your bank, to buying and selling real estate or other property. Your agent for finances will be able to sign documents and make choices as if they were you, on your behalf.

While generic financial POAs give broad authority to your agent, you can tailor your POA to meet your needs. For example, you can allow your agent to pay your bills and write checks, but prevent them from selling your property or buying new property.

Healthcare POA

A healthcare POA gives your agent the authority to make healthcare decisions for you. This can include medical treatments, medications, surgery, or in the worst-case scenario, end-of-life care. Hospitals typically want their patients to have a healthcare POA, so they know who to go to for decisions if you cannot make them for yourself. A healthcare POA agent can access your medical records for you, and will be allowed to seamlessly visit you if you are hospitalized.

Your agent under the healthcare power of attorney will only be able to act on your behalf if you are deemed incapacitated by doctors, and are unable to communicate your wishes. Healthcare POAs are an integral component of your long-term planning and should be included in any estate plan you come up with.

Living Will

Related to a healthcare POA is the living will. A living will is a document where you can leave specific instructions for your care in serious medical situations. For example, if you suffer a serious accident that leaves you reliant on a feeding tube and breathing machine, what would you want the doctors to do? With a living will, you can make these choices ahead of time, and your doctors will follow them. Like healthcare powers of attorney, doctors will only turn to a living will if you are unable to communicate your wishes.

“Durable” vs. “Springing”

Have you heard of either “durable” or “springing” POAs? These terms refer to when and how long a POA is effective. Durable POAs are effective the moment you sign them, and continue to be effective when you become incapacitated. When a POA doesn’t grant your agent authority until you are incapacitated, or until some other condition is met, the power of attorney is called a springing POA.

When determining what type of power of attorney you need, you should think about when you want your agent to be able to act on your behalf. Do you need someone to help with your finances now? Or are you planning for the worst, and only need a POA agent if you are incapacitated?

Ultimately, POAs are a crucial part of your short- and long-term estate planning. They are customizable, and allow you to rest easy, knowing that even if you can’t make your own decisions, the people you trust will be able to.

Ready to create a POA or Living Will? The attorneys at Russell Law Offices, S.C. are experienced and ready to help you create a plan that works for you and your needs. Call for a consultation today!

What is Basis and Why is it Important?

by Nathan Russell, Owner & Managing Attorney

I really enjoy estate planning as it affords me the opportunity to really dig into my client’s goals.  This allows me to ask a various list of questions of my clients and, in return, provide a lot of insight into their estate planning concerns and goals.  As an estate planner, one of the most common concepts I have to explain to clients is the term “Basis”. “Basis” is a term used to describe the cost or original value of an investment or asset for tax purposes. It is essentially the amount used to calculate capital gains or losses when an asset is sold. The basis can be adjusted to reflect changes in value, such as improvements made to real estate or stock dividends. When a client sells an asset, their capital gain or loss is determined by subtracting the basis from the sale price of the asset. It is important to accurately determine the basis of an asset to correctly calculate taxes owed on any profits from a sale.

Improvements Can Modify Basis

While your basis in an item is generally determined at the time of purchase it can be modified.

Specifically, improvements to an asset can impact the basis in the following ways:

1. Capital Improvements: Capital improvements are permanent additions or alterations to a property that increase its value, extend its useful life, or adapt it to a new use. Examples include adding a room, installing a new roof, or updating a bathroom. These improvements increase the basis of the property.
2. Repairs: Repairs are expenditures made to keep an asset in good condition and maintain its value. Examples include fixing a leaky roof or replacing a broken window. Repairs do not increase the basis of the property, but they can be deducted from current year income.

It’s important to note that to qualify as a capital improvement or repair, the expenses must be ordinary, necessary and reasonable in amount, and incurred in connection with the property. Additionally, documentation should be kept supporting the expenses as either a repair or a capital improvement.

What Does Stepped-Up Basis Mean?

When drafting estate plans, it is critical to determine if you should utilize a “stepped-up basis” plan.  “Stepped-up basis” is a tax term used to describe the adjustment of the cost basis of an asset for tax purposes upon the death of an owner. The stepped-up basis is equal to the fair market value of the asset at the time of the owner’s death. This means that, for tax purposes, the person inheriting the asset can treat the asset as if they had purchased it for its fair market value at the time of the owner’s death.  The fair market value is often determined by the public market for stocks and bonds while an appraisal is generally necessary for real estate and business assets.

For example, if an individual owns stock worth $100,000 at the time of their death and their cost basis in the stock was $50,000, the person inheriting the stock would receive a stepped-up basis of $100,000. This would effectively eliminate any capital gain that would have been recognized if the stock had been sold for $100,000 while the original owner was still alive.

The stepped-up basis can have significant tax implications for the person inheriting the asset, as it can reduce the amount of capital gains tax they would owe if they sold the asset in the future. It’s important to note that not all assets are eligible for a stepped-up basis and that the specific rules and regulations vary depending on the type of asset and jurisdiction.

In general, in Wisconsin, if an asset is considered marital property, the surviving spouse generally receives a stepped-up basis for the entire property upon the passing of the spouse. Marital property is generally defined as property acquired during the marriage, regardless of which spouse holds title to the property.

Upon the death of one spouse, the surviving spouse typically receives a stepped-up basis equal to the fair market value of the property at the time of death. This means that, for tax purposes, the surviving spouse can treat the entire property as if they had purchased it for its fair market value at the time of the deceased spouse’s death.

It’s important to note that this stepped-up basis only applies to marital property. Any separate property that was owned by one spouse prior to the marriage or acquired during the marriage through gifts or inheritance would not be eligible for a stepped-up basis.

Basis and Gifting an Asset

When you give an asset, such as stock or real estate, to your child, the child’s basis in the asset is generally the same as your adjusted cost basis in the asset immediately prior to the gift. This means that if you bought the asset for $100 and its value has increased to $200, your child’s basis in the asset would be $100.

It’s important to note that there may be gift tax consequences if the value of the asset you give exceeds the annual gift tax exclusion amount, which is currently $17,000 per recipient for the year 2023. Additionally, if you give an asset that has declined in value, it may be beneficial to transfer the asset to your child rather than selling it, as the child would then inherit your lower basis in the asset.

In conclusion, understanding the concept of basis is crucial in estate planning and in calculating taxes owed on asset sales. It is important to accurately determine the basis of an asset, which can be adjusted through capital improvements or repairs. The stepped-up basis is a tax tool that we can use to save significantly on taxes for the person inheriting the asset. Estate planning requires careful consideration of all these factors to ensure a smooth transfer of assets and minimize tax liability.  The attorneys at Russell Law Offices, SC are experienced and knowledgeable in the areas of tax basis to help you weave its consideration into your estate plan.  Call for a consultation today!

But Who Gets the Dog? Cohabitation and Pet Ownership

by Taylor Lovett, Associate Attorney

Often relationships involve pets. It can be difficult and emotional to determine who gets to keep the animal when the relationship has ended. While pets feel like a member of the family, they are considered property under Wisconsin law. The Wisconsin Supreme Court has expressed some discomfort with considering pets as mere property, stating that doing so “fails to describe the value human beings place upon the companionship that they enjoy with a [pet].” Nevertheless, pets are considered property under the law. Because of this when pets are involved in divorce, the court determines custody of a pet by using the marriage property division statute, Wis. Stat. § 767.61. But this property division statute is inapplicable to non-martial cohabitation. Therefore, determining custody of a pet in a non-martial cohabitational relationship can be ascertained the same way other personal property division is decided.

In Wisconsin, the seminal case handling property division following a cohabitational breakup is Watts v. Watts.  In Watts, the couple lived together for 12 years, had 2 children together, and held themselves out as husband and wife though they were never married. When the relationship ended, the Wisconsin Supreme Court recognized “nonmarital cohabitation does not render every agreement between the cohabiting parties illegal and does not automatically preclude one of the parties from seeking judicial relief.” The court outlined several legal theories a plaintiff in this situation can use—first, the plaintiff can argue the couple had a contract to share equally the property accumulated during their relationship; second, the plaintiff can use the doctrine of unjust enrichment; third, the plaintiff can ask the court to create a constructive trust; and fourth, the plaintiff can rely on the doctrine of partition.

The Wisconsin Supreme Court decided Watts in 1987, and over time “unjust enrichment” has become the so-called “cohabitated divorce action.” Also called “quasi-contracts” or contracts implied by law rather than fact, unjust enrichment involves “obligations created by law to prevent injustice.” In Wisconsin, there are three elements that must be met to prove unjust enrichment. These are 1) A benefit conferring on the defendant by the plaintiff; 2) Appreciation or knowledge by the defendant of the benefit; and 3) Acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit. In Watts, it would have been unfair to allow the defendant to keep everything while the plaintiff received nothing after all she had contributed to housekeeping, childrearing, and the defendant’s business.

Cohabitation alone does not give rise to an unjust enrichment claim. The claimant must establish there was a joint enterprise during the relationship in which both parties made financial contributions or services to the acquiring joint assets. This may or may not include joint financial accounts, joint tenancy in real estate, joint sharing of expenses, and even housekeeping and childrearing duties that allowed the other partner to acquire income and other property. In a pet ownership dispute, a judge may look to who bought the animal and paid various costs associated it with caring for it, such as purchasing food and paying veterinary bills, but will also consider who is the pet’s primary caretaker. For example, if Partner A paid the couple’s cat adoption fees, and generally takes the cat to the vet, buys the cat food and toys, etc., a judge may decide it would be unfair to allow Partner B to keep the cat in a breakup.

To avoid involving the legal system, a cohabitating non-married couple with a pet, or pets, could reach an agreement ahead of time regarding who gets to keep the animal(s), or come to a shared custody arrangement. Russell Law Offices, S.C. is here to help with your cohabitation questions.

Wisconsin Probate Administration

by Laine Carver, Associate Attorney

After a loved one passes away, family members are often left with the seemingly daunting task of administering the decedent’s estate. This can be overwhelming for some folks, especially if the decedent did not leave a will prior to death. However, with a bit of legal consultation, administration of a decedent’s estate, also known as probate, does not need to be so difficult. This article is intended to provide family members with a basic understanding of the probate process and hopefully make the experience less stressful for everyone involved.

Opening the Estate

The first step in opening an estate is to actually apply to do so. In this application, the applicant (generally an heir of the decedent) will provide information about the decedent, family members of the decedent, whether or not there was a will, and nominate the Personal Representative. The Personal Representative is charged with administering the estate. This is sometimes referred to as the Executor in other states.

In Wisconsin, most estates are administered either by Informal Administration or Formal Administration. Informal Administration allows the Personal Representative to administer the estate without direct involvement of the court. Formal Administration requires an attorney to be hired and is often the type of administration to choose when the estate is large, if there is a question of the legitimacy of a will, or if any other type of dispute may arise.

Once the Personal Representative is appointed, he or she will be issued Domiciliary Letters, which allows the Personal Representative access to the decedent’s information and assets, such as bank accounts, investments, safe deposit boxes, etc.

Once the estate is opened, the Personal Representative must publish a “Notice to Creditors,” which, as its name suggests, notifies creditors of the administration of the estate. Creditors will have 90 days to file a claim against an estate. If a creditor fails to file a claim in that time period, the debt owed to the creditor is likely never to be paid by the estate.

Inventory

The compiling of estate assets is the most time-consuming duty of the Personal Representative. The estate assets (and liens on those assets, like a mortgage) are accounted for on the Inventory statement that is filed with the court by the Personal Representative. The assets must be valued at their fair market at the time of the decedent’s death. Generally, if the asset is sold to a third party after the decedent’s death, the selling price is a sufficient value. If the asset is being purchased by an heir of the decedent or is going to be co-owned by beneficiaries, an appraisal of the asset may be necessary to obtain a fair market value.

Once the asset values are all accounted for, the Personal Representative will file the Inventory statement. Upon filing, the estate must pay an Inventory filing fee of .2% of the net value of the estate.

Closing the Estate

After the Inventory has been filed, the Personal Representative must do three things to close the estate. First, the Personal Representative must provide a full accounting of income, expenses, and distributions from the estate. This is done on the Final Accounting statement that will be filed with the Court. Second, the Personal Representative must distribute the estate assets according to the decedent’s will or the laws of intestacy (if the decedent died without a will). To confirm the assets have been appropriately distributed, the Personal Representative must obtain Estate Receipts from the heirs or beneficiaries that received the distributions. Once these are obtained, the Personal Representative files a Statement to Close the Estate, which ends the administration of the decedent’s estate.

Conclusion

Probate administration is a scary thought for many who just lost a loved one. However, with legal counsel who are well-versed in the process, it can be (relatively) quick and painless. If you or someone you know has questions about the administration of a loved one’s estate, do not hesitate to call Russell Law Offices, S.C. at 608-448-3360 to see how we can best serve you.

Rental Considerations for Cohabitating Couples

by Nathan Russell, Founder and Managing Attorney

When an unmarried couple shares a rented residence in Wisconsin, they may face a number of challenges in untangling their respective rights and obligations when they break up. The time that each individual spent at the dwelling – whether it’s an apartment, condominium, house, or cabin in the woods – may very well have constituted a form of a residential tenancy, each with their own rights to sort out.

When a cohabitating, unmarried couple splits up, among their initial rental considerations is determining the impact of the departure of either or both of them from the rented premises. The first step in working through this dilemma involves a review of the terms of the lease agreement. Not only would a lease agreement generally contain basic terms about the named parties, the rent and security deposit, the start and end date of the tenancy, and so on, but it may also contain terms surrounding more specific aspects of the tenancy, such as specifying how to proceed when a renter intends to terminate the agreement and vacate the premises prior to the expiration date. It may be the case that there is no written lease or that one of the residents is not named on the lease as a tenant. In such circumstances, either or both of the residents may still have developed tenancies at the premises, just in other forms, such as through a periodic tenancy or tenancy at will.

Other considerations involve the sublet or re-rental of the premises, the condition of the premises and security deposit, and the possibility of a lease termination agreement. If the lease describes procedures to sublet or re-rent the premises, the residents may find it worthwhile to communicate with the landlord about how to proceed. For example, even if the residents were able to procure new subletters, renters, or roommates to replace one or both of them under the lease, they may still need to obtain the landlord’s prior approval before putting that plan into action. If one of the cohabitants remains while the other leaves, one of them may wish to ask the landlord if they would be amenable to conducting a move-out walkthrough as, or immediately after, the former resident departs, to log the condition of the premises at that time (though the landlord may conduct one regardless, depending on the circumstances). Lastly, the landlord may offer that the departing renter/s pay a lump sum in exchange for an early termination of the lease. The parties should carefully weigh the costs and benefits of such an agreement based on their circumstances.

If the renter who remains (or hopes to remain) at the rented premises will be unable to pay their rent and other housing expenses following their former partner’s departure, they may want to act sooner rather than later, since the failure to pay timely rent could result in the accrual of late fees and an eviction being filed against them. In addition to efforts made to procure new subletters or roommates, such a renter may also consider requesting that the landlord allow them to move to a lower-cost rental unit, if the landlord or property is of a large enough scale to accommodate that request. Such a renter may also consider contacting local rental assistance programs to see if they would qualify for any financial assistance in meeting upcoming payment obligations.

Cohabitation involving a rented residence can present an added layer of difficulty when partners go their separate ways. Reach out to Russell Law Offices to assist you in navigating this legal landscape so you don’t have to go through it alone.