COURT OF APPEALS

DECISION

DATED AND FILED

July 18, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1647 Cir. Ct. No. 2020IN10

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE ESTATE OF JOSEPH ANDREW ROBERT GERGER:

AMARA GERGER, ALICE GERGER AND GABRIEL GERGER,

 APPELLANTS,

 V.

YAJAIRA VANESSA AVILA GERGER,

 RESPONDENT.

APPEAL from a judgment of the circuit court for Langlade County: 

JOHN B. RHODE, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2021AP1647

2

¶1 PER CURIAM. Three of decedent Joseph Gerger’s children—

Amara Gerger, Alice Gerger, and Gabriel Gerger—appeal a judgment granting a 

“Petition for Decedent’s Interest in Home” filed by Joseph’s widow, Yajaira 

Vanessa Gerger.1 The children argue that the circuit court erred by reforming a 

real estate deed to provide Vanessa a survivorship marital interest in the couple’s 

home, thereby entitling her to the proceeds from the home sale. For the reasons 

discussed below, we affirm the judgment.

BACKGROUND

¶2 Joseph and Vanessa were married on February 5, 2018. In the 

summer of that year, the couple decided to move away from Milwaukee, and they 

toured a number of homes together. On July 31, 2018, they purchased a home in 

Antigo for $90,000. Joseph used money he had inherited from his grandmother to 

pay for the home in cash. The deed to the home listed only Joseph as the grantee, 

and it identified him as being single despite his marriage to Vanessa. Vanessa did 

not sign any documents related to the closing, and she was not present at the 

closing because she was home “pregnant and sick.” According to Vanessa, upon 

his return from the closing, Joseph handed Vanessa the deed and stated, “This is 

your house.” 

¶3 Joseph and Vanessa both maintained the home while they lived 

there. On May 25, 2020, Joseph died intestate. The home, which was Joseph’s 

only significant asset, was sold a month later for approximately $85,000. 

 

1

 Because the parties share a surname, we will refer to the appellants as “the children”

and the respondent as “Vanessa.” The three children litigating this matter were born from 

Joseph’s previous relationships. Joseph shared a fourth child with Vanessa. 
No. 2021AP1647

3

¶4 Joseph’s sister filed an “Application for Informal Administration” of 

the Estate, and Vanessa subsequently filed the underlying “Petition for Decedent’s 

Interest in Home,” seeking the proceeds of the home sale pursuant to WIS. STAT.

§ 861.21 (2021-22),2 which governs the assignment of a home to a surviving 

spouse. The children objected to Vanessa’s petition. After a bench trial, the 

circuit court determined that Vanessa was entitled to equitable relief and 

consequently reformed the deed to include Vanessa as a grantee, thereby making 

the home survivorship marital property. This appeal follows. 

DISCUSSION

¶5 A court in equity may reform written instruments that, by mutual 

mistake, do not express the true intentions of the parties. Chandelle Enters., LLC 

v. XLNT Dairy Farm, Inc., 2005 WI App 110, ¶18, 282 Wis. 2d 806, 699 N.W.2d 

241. The party seeking reformation must offer clear and convincing proof that 

both parties intended to make a different instrument and had agreed on facts that 

were different than those set forth on the instrument. Id. A circuit court’s 

decision to grant equitable relief is reviewed under the erroneous exercise of 

discretion standard. Pietrowski v. Dufrane, 2001 WI App 175, ¶5, 247 Wis. 2d 

232, 634 N.W.2d 109. We will not reverse a discretionary decision of the circuit 

court when it applies the correct legal standard to a reasonable view of the facts of 

record and reaches a conclusion a reasonable judge could reach. Rodak v. Rodak, 

150 Wis. 2d 624, 631, 442 N.W.2d 489 (Ct. App. 1989). The court’s findings of 

 

2

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2021AP1647

4

fact will not be set aside unless they are clearly erroneous. WIS. STAT.

§ 805.17(2).

¶6 When a decedent spouse’s property arrangements were made in 

fraud of the survivor’s rights, equitable relief to a surviving spouse is also 

available pursuant to WIS. STAT. § 861.17(1). The application of a statute to a 

particular set of facts is a question of law that we review de novo. Armour v. 

Klecker, 169 Wis. 2d 692, 697, 486 N.W.2d 563 (Ct. App. 1992). 

¶7 Here, the children argue that there was no fraud or mutual mistake 

justifying reformation of the deed. The deed, however, listed Joseph as being 

single when he was, in fact, married. Whether his listing as single was the result 

of fraud by Joseph or anybody else is unclear. In any event, it was certainly a 

mistake. 

¶8 The children nevertheless claim that the circuit court erred by 

reforming the deed based, in part, on its conclusion that “the language of the deed 

does not express any intent to characterize the property as something other than 

survivorship marital property.” According to the children, this conclusion 

disregards the language of the deed as it was written because the deed does not 

include the words “survivorship marital property” or otherwise include Vanessa’s 

name. The children also argue that the deed’s identification of Joseph as being 

single evinced his intent that the property remain his alone. 

¶9 The children’s argument, however, ignores the application of WIS.

STAT. § 766.605 to the facts of this case. That statute provides, in relevant 

part: “A homestead acquired after the determination date which, when acquired, is 

held exclusively between spouses with no [third] party is survivorship marital 

property if no intent to the contrary is expressed on the instrument of transfer or in 
No. 2021AP1647

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a marital property agreement.” The “determination date” under these facts is 

defined as the date the parties married. See WIS. STAT. § 766.01(5). 

¶10 Here, the home was purchased after Joseph and Vanessa were 

married, and it was held exclusively by the couple. The deed identified the home 

as “homestead property,” and the couple paid for expenses related to the home 

from a joint credit union account. There was no evidence of any agreement 

between the parties, such as a marital property agreement, specifying that the 

home was anything other than survivorship marital property. Likewise, nothing 

on the deed demonstrated an intent to hold the property as anything other than 

survivorship marital property. To the extent the children emphasize that the 

couple were married only six months before the home purchase and resided there 

for only twenty-two months before Joseph’s death, those facts are immaterial to 

determining whether a homestead is survivorship marital property under WIS.

STAT. § 766.605. 

¶11 The children assert that the deed’s reference to Joseph as being 

single signifies his intention that the house remain individual property. We 

disagree. In Droukas v. Estate of Felhofer, 2014 WI App 6, 352 Wis. 2d 380, 

843 N.W.2d 57 (2013), vacant property was titled in two individuals’ names as 

single persons. Id., ¶2. The individuals, who were in a relationship, began 

construction of a home on the property and married during the home’s

construction. Id., ¶4. The couple then lived in the home for approximately eleven 

years, until the husband’s death. Id., ¶¶4-5. Although the facts of that case differ 

from the present matter, the decision is instructive. 

¶12 This court addressed whether the home was survivorship marital 

property, holding that “[t]he use of the phrase ‘single persons’ [on the property 
No. 2021AP1647

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deed] simply describe[d] a fact: that at the time they purchased the vacant lot, [the 

parties] were not married.” Id., ¶32. The court added that the term “single 

persons [did] not represent a classification of property ownership of any kind, to 

wit, tenancy in common, joint tenancy, marital property, or any other recognized 

classification.” Id. Because “single persons” failed to express any recognized real 

property classification, it was not evidence of an intent on the part of the parties. 

Id. Similarly, Joseph’s identification as being single on the deed is not evidence 

of an intent to maintain the home as his individual property. 

¶13 The children also contend that Joseph’s decision to purchase the 

home with a portion of his inheritance evinced his intent for the home to remain 

his individual property. Citing WIS. STAT. § 766.31(8), the children argue that the 

circuit court ignored the exception to the marital property presumption that 

governs rights to property acquired before the determination date—in this case, the 

marriage. That subsection provides: 

 Except as provided otherwise in this chapter, the 

enactment of this chapter does not alter the classification 

and ownership rights of property acquired before the 

determination date or the classification and ownership 

rights of property acquired after the determination date in 

exchange for or with the proceeds of property acquired 

before the determination date. 

Sec. 766.31(8) (emphasis added). The children maintain that Joseph exchanged 

individual property received prior to the marriage for other individual property 

after the marriage, and that his property can be easily traced. 

¶14 Here, however, WIS. STAT. § 766.31(8) does not control because

WIS. STAT. § 766.605 specifically provides that the homestead is classified as 

survivorship marital property. 
No. 2021AP1647

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¶15 The children also assert that testimony given by Joseph’s sister, 

Christina Lozano, supports their contention that Joseph intended to maintain the 

home as individual property. At trial, Lozano testified that Joseph called her after

the closing and, during that conversation, she asked whose name was on the deed. 

According to Lozano, Joseph responded, “Mine,” adding that “[n]obody’s taking 

shit from me ... like it happened to you”—a reference to events that apparently 

occurred when Lozano purchased a home in her husband’s name. The circuit 

court, as the fact finder, was entitled to weigh the witnesses’ testimony and 

determine their credibility. See Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 

500, 512, 434 N.W.2d 97 (Ct. App. 1988). 

¶16 Moreover, as the circuit court noted, if, as Lozano testified, Joseph 

intentionally identified himself as being single in order to ensure the property 

remained with him if he and Vanessa divorced, “then he definitely engaged in a 

fraudulent transfer, which [would] entitle[] Vanessa to the equitable relief 

[sought].” Ultimately, the evidence and the reasonable inferences available 

therefrom provide a sufficient basis for the court’s discretionary decision to grant 

Vanessa equitable relief, even if reasonable opposing inferences were available.

¶17 Citing Estate of Carroll v. Ansley, 2001 WI App 120, 244 Wis. 2d 

280, 628 N.W.2d 411, and its application of WIS. STAT. § 852.01, the children 

alternatively contend that Joseph’s half of the marital property should be 

distributed consistent with the basic rules for intestate succession. As the circuit 

court recognized, it is unclear whether the property discussed in Estate of Carroll

included a homestead. In any event, WIS. STAT. § 852.09 provides: “If the 

intestate estate includes an interest in a home, assignment of that interest to the 

surviving spouse or surviving domestic partner is governed by [WIS.

STAT. §] 861.21,” the statute under which Vanessa petitioned for an interest in the 
No. 2021AP1647

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home. That statute provides that subject to exceptions that do not appear to apply 

here:

 [I]f a married decedent ... has a property interest in a 

home, the decedent’s entire interest in the home shall be 

assigned to the surviving spouse ... if the surviving 

spouse ... petitions the court requesting such a distribution 

and if a governing instrument does not provide a specific 

transfer of the decedent’s interest in the home to someone 

other than the surviving spouse.... The surviving 

spouse ... shall file the petition within 6 months after the 

decedent’s death, unless the court extends the time for 

filing.

Sec. 861.21(2). 

¶18 The children argue that even if the home is assigned to Vanessa, she 

must pay the value of Joseph’s interest in the home to Joseph’s estate, for 

distribution according to the rules for intestate succession. The children’s 

arguments regarding intestate succession, however, are irrelevant where, as here, 

the property is “survivorship marital property.” See Droukas, 352 Wis. 2d 380, 

¶¶10, 13 (noting that survivorship marital property under WIS. STAT. § 766.605 is 

exempt from the rules of intestate division). 

By the Court.—Judgment affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.