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
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
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 a
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
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
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.