What is a spousal property petition?: After the death of a spouse, a spousal property petition can be used to change the titles of the assets to the surviving spouse's ownership. 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.  There must also be community property that will pass to the surviving spouse, or separate property that will pass to the surviving spouse in accordance with the will of the decedent.  The community property can pass due to the provisions of a will or due to intestate succession for decedents who do not have a will.  However, if the decedent owned separate property, and there is no will that gives the separate property to the spouse, a full probate will be required because between one-half and two-thirds of the separate property could be inherited by the decedent's children due to intestate succession.

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. 

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 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.