In California, spouses or registered domestic partners are given privileged status in regards to collecting the assets of their deceased partner’s estate. After the death of a spouse or domestic partner, a spousal property petition can be used to transfer assets from the deceased spouse or domestic partner 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.

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 or domestic partner may want to probate the estate because litigation against the estate or a will contest is likely, or because of potential problems with creditors.

California Probate Code §13500 provides for a simplified procedure to distribute property from a decedent to the surviving spouse or domestic partner as follows:

• The Petition can only be filed by a surviving spouse or domestic partner or a representative/conservator of the surviving spouse or domestic partner. Additionally, a surviving domestic partner can file for the petition. The surviving spouse or domestic partner files a petition in the superior court in the county in which the decedent spouse’s or domestic partner’s estate may be administered. California Probate Code §13650; California Family Code §297.5(c).
• Which assets can be transferred using the Spousal Property Petition depends on the whether or not a Will exists and if so, the contents of the Will:
  • If a Will exists, and the only beneficiary is the surviving spouse or domestic partner, then all property listed in the Will can be passed to the surviving spouse or domestic partner using a Spousal Property Petition.
  • If the Will lists other beneficiaries, then only the property listed as passing to the surviving spouse or domestic partner can use the Spousal Property Petition. The other assets passing to other beneficiaries will likely need to go through a full probate to be properly transferred.
  • If no Will exists, then only the property that would pass to the surviving spouse or domestic partner, through intestate succession, can be passed to the surviving spouse or domestic partner using the Spousal Property Petition. This is usually limited to the Community Property of the estate. Separate Property usually cannot pass to the surviving spouse or domestic partner without a full probate procedure. It is important to determine the nature of the assets in the estate (Community versus Separate Property) to see if a Spousal Property Petition is applicable. It is advisable to contact an attorney if you are unsure of the nature of a specific asset.

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 or domestic partner’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 or domestic partner’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.

The process should take a few months to complete. Most courts now have access to case files on the Internet, so you can look up cases to get a better idea of how long the process might take in your specific county.

Unlike regular probate, there is no set schedule for compensating an attorney for spousal or domestic partner property probate. Also, no court approval of the agreement is required. California Probate Code §13660.

Is the surviving spouse or domestic partner still liable for the decedent’s debts? Yes, the surviving spouse or domestic partner is personally liable for the decedent’s debts. California Probate Code § 13550; California Family Code §297.5(c). Thus, the survivor cannot inherit the property absent the liabilities, if any, that are attached to it. This is consistent with other types of probate and non-probate transfers in that the beneficiary may not inherit an asset without assuming the attached liabilities. This is a sensible rule because a prudent person would agree that one should not be allowed to receive all the benefits without incurring any burdens.

The one exception to this general rule is the case of exoneration. Exoneration is where a will specifies that an encumbered piece of real property will have the encumbrance, a mortgage for example, paid off before it is transferred to the beneficiary. However, a person must write in their will that they want exoneration to occur because the default rule is to not pay off the encumbrance prior to transfer.

Conclusion

What happens if the surviving spouse or domestic partner 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.

If you are a spouse trying to probate an estate after death, the process can be confusing and you may not know what to do. That is where I can be of help. I make a difficult and bewildering probate process as simple as possible. If you wish to gain more information on California probate please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype or through my online contact form.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

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