When a spouse dies in California, their surviving spouse may need to determine how ownership of the deceased person’s property will be transferred. While probate is one way to handle an estate, California law provides other procedures for certain property interests. One option is a spousal property petition. This may allow a qualifying property to be transferred without opening a full probate case.
A petition can be very useful when the surviving spouse claims an interest in community property or other property belonging to the deceased spouse. However, the type of property, how it was owned and the deceased person’s estate plan can affect whether this procedure is appropriate.
How does a spousal property petition work?
A spousal property petition asks the probate court to determine whether some or all of the deceased person’s property belongs to the surviving spouse or registered domestic partner. California Courts identify this procedure as an option when the surviving spouse is legally entitled to the property, including certain community property.
The surviving spouse generally files Form DE-221 and provides information supporting the claimed ownership interest. Ownership documents, such as deeds and account records, may help establish whether the property was community property. Then, the court can issue an order determining the spouse’s rights in the property.
When is probate still necessary?
A spousal property petition does not automatically eliminate the need for probate. Issues may arise if:
- The deceased person owned separate property
- They left property to someone other than the spouse
- Ownership cannot be established clearly
- There is a will or a prenuptial agreement
Because the correct transfer procedure for any given situation depends on an estate’s assets and ownership records, a surviving spouse may benefit from legal guidance to review their deceased spouse’s estate before administration begins. Legal guidance during the estate planning process can also help individuals to avoid probate proactively.
