Spousal Property Petition
A surviving spouse may use a Spousal Property Petition to transfer or confirm property without a full probate proceeding. It is much simpler than full probate administration and is usually completed with only one or two court hearings.
Who can file a Spousal Property petition?
- The surviving spouse,
- The representative of a surviving spouse’s estate (if the surviving spouse is also now deceased), or
- The conservator of the surviving spouse’s estate.
A person’s estate must qualify for this proceeding. With a spousal property petition, there are two very important questions to ask:
1. Did the decedent own community property, separate property, or a combination of the two?: Community property is generally defined as the assets acquired during marriage from earnings or salary. Separate property is generally defined as assets brought into the marriage when the decedent got married, inheritances to the decedent, or gifts to the decedent. However, California case law provides many exceptions to these definitions, and assets can change from community to separate property, or from separate to community, by combining assets, by improving separate property with community property, or by written agreement of the spouses, for example.
This is how a decedent’s estate is distributed when a person dies without a will, which is referred to as dieing “intestate”:
- The decedent’s community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership.
- The decedent’s separate property is distributed as follows:
- The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters, or children of a deceased brother or sister.
- The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.
- The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.
- The surviving spouse receives only one-third of the separate property if the decedent left more than one child. v. The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.
- The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.
So you can see how important the characterization of the decedent’s assets are, especially if the decedent died without a will.
Bottom line: If the decedent died intestate, you can only use this procedure to collect his or her community property.
2. Did the decedent have a will, and if so, what does it say?
A person who dies with a valid will is referred to as dieing “testate”.
If the will only names the surviving spouse as the beneficiary of the decedent’s estate (meaning it names no other person), then it doesn’t matter whether the decedent’s property was community, separate, or a combination of the two — when the will says everything goes to the surviving spouse, then that’s how it will go and you can use the Spousal Property Petition.
On the other hand, If the will lists other beneficiaries, or only partially distributes assets to the surviving spouse, then you should not use this proceeding. If this is the case, then the decedent’s estate likely requires “full administration”.
Bottom line: If the decedent died testate, use this proceeding only if the decedent’s will names the surviving spouse and no other person.
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