Spousal Property Petitions

What is a spousal property petition? After the death of a spouse, a spousal property petition can be used to transfer assets from the deceased spouse to the surviving spouse or domestic partner. It is a simplified probate, and takes much less time than a full probate. Legal fees are usually much lower for a spousal property petition than a full probate.

When can a spousal property petition be used? Whenever someone has died and that person leaves a surviving spouse or domestic partner.  If there is a will, and the only beneficiary is the surviving spouse or domestic partner, both community property and separate property can be transferred by a spousal property petition.  If the will has other beneficiaries, however, a probate may be needed for the assets being transferred to those beneficiaries.

However, if there is no will, the estate will be transferred in accordance with intestate succession.  Community property can be transferred to the surviving spouse or domestic partner through the spousal property petition.  But if the decedent owned separate property, and there is no will that gives the separate property to the spouse, a full probate might be required for the separate property assets.

Does a spousal property petition have to be used in all cases in which there is community property?  No.  In some cases the surviving spouse may want to probate the estate because litigation against the estate or a will contest is likely, or because of potential problems with creditors.

How does the process work? The surviving spouse files a spousal property petition with the Superior Court in the county in which the decedent resided.  The petition is usually filed with the help of an attorney, although that is not required.  The petition states the facts of the case (name of the decedent, date of death, etc.) and also lists the community property owned the decedent.  Some of the decedent's assets will not be on the petition, however, because they were owned in joint tenancy. 

The petition asks (1) that the court state that the decedent's half of the community property passed to the surviving spouse by operation of law and (2) that the court confirm that the surviving spouse's half of the community property belongs to the surviving spouse.

A court hearing is set for the petition, and notice of the hearing is sent to everyone who is mentioned in the will (if there is one) and all of the heirs of the decedent. 

If there is no objection to the spousal property petition, the court will sign an order that transfers all of the community property to the surviving spouse's sole ownership.  There is usually no testimony required and spousal property petitions are often on the court's "pre-approved" list, meaning that unless someone asks that the case be heard, there will be no hearing and the court will sign the order.

The spousal property order is then recorded with the County Recorder in each county in which the real property is located to put the surviving spouse's ownership of the property on the public record.  Copies of the order are also given to financial institutions and brokerages to clear up any ownership questions concerning other assets.

What happens if the surviving spouse does not file a spousal property petition? Title to assets owned by the couple will be clouded because a deceased person will be listed as an owner of the assets.  Real estate, for example, cannot be sold or refinanced until the title is cleared. 

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