What Is a Spousal Property Petition, and When Should You Use It?

The California Probate Code allows a simplified procedure to transfer property from the decedent to a spouse or domestic partner, which is called a Spousal Property Petition. The process is much shorter and the fees are significantly lower than in a full probate.

When can a spousal property petition be used? The first requirement is, of course, that the decedent leaves a surviving spouse or domestic partner.

If there is a will, and the only beneficiary is the surviving spouse or domestic partner, the spousal property petition can be used to transfer both community and separate property. If the will names other beneficiaries, then probate may not be avoided unless the transferred assets fall under the "small estates" category.

If there is no will, the transfer of the estate is made according to intestate succession, which means that there may be other beneficiaries than the surviving spouse or domestic partner. The spousal property petition can be used to transfer community property, but if the decedent owned separate property, a full probate may be needed unless the separate property enters in the small estates category.

Should a spousal property petition be used whenever possible?
The process has significant advantages in terms of time and money, and that should be reason enough to use the spousal property petition in most cases. If a surviving spouse expects problems, like a litigation against the estate, a will contest, or disputes with creditors, a full probate may offer better protection and assurance.

Once the petition is filed, the court will set a hearing and send a notice to close relatives and other people interested in the estate. Unless someone objects to the petition, an appearance in court is not necessary. The court will then routinely approve the petition and confirm the new owner of the property. The court order is all you need to transfer or clear title to the property. The entire procedure takes about one month.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

Loading