186 Wis. 2d 409 521 N.W.2d 162

In the Matter of the Estate of Lorenz E. Jank, Deceased: James J. Winiarski, successor personal representative of the Estate of Lorenz E. Jank, Appellant, v. Gerald J. Miicke, Respondent.

Court of Appeals

No. 94-0479-FT.

Submitted on briefs June 15, 1994.

Decided July 12, 1994.

(Also reported in 521 N.W.2d 162.)

*410On behalf of the appellant, the cause was submitted on the briefs of James J. Winiarski of Milwaukee.

On behalf of the respondent, the cause was submitted on the briefs of Gordon A. Borman of Milwaukee.

Before Wedemeyer, P.J., Sullivan and Fine, JJ.

FINE, J.

James J. Winiarski, as successor personal representative of the Estate of Lorenz E. Jank, appeals from a trial-court order declaring Gerald J. Miicke to be an "interested party" in the Jank estate.1 Underlying this determination was the trial court's finding that Miicke was Mr. Jank's heir.2 We reverse.

The facts material to this appeal are few and undisputed. Miicke was born in 1931 to the decedent, Lorenz E. Jank, and his wife Helen Jank, who died in childbirth. In 1933, Miicke was adopted by his mater*411nal grandparents.3 Mr. Jank died intestate in 1991. Winiarski contends that Miicke's right to inherit from Mr. Jank by intestate succession was terminated by § 851.51(2), Stats., which provides, with exceptions not relevant here, that a lawfully adopted child may not take by intestate succession from his or her birth parents.4 Section 851.51(2) became effective on February 8, 1970.5 The trial court's ruling was premised on its *412belief that § 851.51(2) was prospective only, and therefore did not apply to Miicke's situation.

Whether § 851.51(2), STATS., cuts off the intestate-succession rights of those persons lawfully adopted prior to its effective date is a matter of first impression. We decide this legal issue de novo. See Schulz v. Ystad, 155 Wis. 2d 574, 596, 456 N.W.2d 312, 320 (1990) (whether statute applies retroactively is a question of law decided by appellate courts de novo).

Statutes affecting substantive rights are not applied retroactively, unless the legislature clearly so intended. Schulz, 155 Wis. 2d at 597, 456 N.W.2d at 320 ("no law should be enforced before people can learn of its existence and conduct themselves accordingly"); Bair v. Staats, 10 Wis. 2d 70, 78, 102 N.W.2d 267, 272 (1960). When Miicke was adopted by his maternal grandparents, the law in Wisconsin permitted an adopted child to inherit from his or her birth parents. Sauer v. Goetsch, 216 Wis. 289, 257 N.W. 28 (1934). Nevertheless, the right to take by intestate succession does not exist until the decedent dies intestate. Stein v. Meyer, 206 Wis. 227, 234-235, 239 N.W. 448, 450-451 (1931). Thus, intestate succession is governed by statutes "in force at the time of the death of the intestate." Hull v. Collins, 259 Wis. 453, 455, 49 N.W.2d 483, 484 (1951). Accordingly, a statute enacted after an adoption that alters the effect of the adoption on the right to inherit from a intestate decedent is prospective, not *413 retroactive, as long as the statute was effective before the intestate's death. Stein, 206 Wis. at 234-236, 239 N.W. at 450-451. Although Miicke was adopted in 1933, and, therefore, may have had an expectancy of being able to take from Mr. Jank by intestate succession, that expectancy disappeared upon the enactment of § 851.51(2), STATS. At that point, Mr. Jank could have accomplished what Miicke now seeks by the simple expedient of making a will and naming Miicke as a beneficiary.6 Although there might be problems with applying a law limiting intestate succession so as to adversely affect circumstances that became fixed prior to its enactment, cf. Schulz, 155 Wis. 2d at 597, 456 N.W.2d at 320 ("as a matter of justice, no law should be enforced before people can learn of its existence and conduct themselves accordingly"), this is not the case here.

*414 By the Court. — Order reversed.

Winiarski v. Miicke
186 Wis. 2d 409 521 N.W.2d 162

Case Details

Name
Winiarski v. Miicke
Decision Date
Jul 12, 1994
Citations

186 Wis. 2d 409

521 N.W.2d 162

Jurisdiction
Wisconsin

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