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Spousal Property Petition: What It Is and When to Use It

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: February 24, 2021

When a person dies, their belongings must pass onto the living. When no other arrangements are made, these belongings are usually distributed and passed among the next of kin according to the intestate laws in the decedent's home state. This process is supervised by a probate court and can be lengthy, depending on the decedent's […]

When a person dies, their belongings must pass onto the living. When no other arrangements are made, these belongings are usually distributed and passed among the next of kin according to the intestate laws in the decedent's home state. This process is supervised by a probate court and can be lengthy, depending on the decedent's estate.

However, it can be expedited in several ways. One of these ways is through a Spousal Property Petition. If the decedent left behind a surviving spouse, the property could be transferred to this spouse through a Spousal Property Petition without completing the lengthy process of probate.

What Is a Spousal Property Petition?

A Spousal Property Petition consists of a state-specific form that describes the property in question and why it should pass to the surviving spouse. If a written agreement or supporting will exists, it must be copied and attached to the filled-out form. A local clerk will file these documents and give you a hearing date. At the hearing, a judge will grant or deny the petition.

The process is quite simple, but it is essential not to miss the finer details. You must notify specific people before the hearing occurs and other documents to fill out (such as Form DE-226, California). When the property passes onto you, there are further considerations to heed, such as whether you inherit your spouse's debts as well. These are best left answered by a legal or estate planning professional.

When Is a Spousal Property Petition Used?

A Spousal Property Petition may be used anytime a surviving spouse is a beneficiary to the decedent's property, which is the case for most married couples. However, if there are other beneficiaries (such as children, siblings, parents, or friends), there may still be a need for a probate process. Without a will or some other estate planning form, the probate process will follow intestate succession rules.

Under California intestate succession rules, for example, all community property passes onto the surviving spouse. However, property held separately may be split between the spouse and other kin, such as relatives and children. There may be cases where a Spousal Property Petition will not be used, despite the presence of community property and a surviving partner.

For example, suppose there is a high likelihood of litigation because of inheritance disputes or problems with lenders/creditors. In that case, a complete probate process may be preferential, as it can provide an opportunity for these disputes to be settled immediately during probate.

If all community property is held in trust for the spouse and transferred that way (or if the spouse is made a direct beneficiary without the need for probate), there may be no need for a Spousal Property Petition. The property included in a marital property petition need not be purely community property, either if a written will or agreement states that the decedent also left the separate property to their surviving spouse.

Understanding the Probate Process

Probate begins once a surviving relative or acquaintance of the decedent files a petition for probate with a copy of the decedent's will (if one exists) and their death certificate. The probate court oversees the process and will usually pick a qualified relative to act as executor or administrator of the decedent's will.

If an executor/administrator were named in the will, the decedent's choice would often be favored. There are many tasks on the docket for an executor of an estate. These include informing all relevant creditors, totaling, evaluating the estate's entirety, managing properties, keeping an inventory, taking care of final bills and debts, and distributing what is left among the surviving beneficiaries and inheritors.

Because certain time limits need to be respected during the process, such as the time given to potential creditors to respond to the news of the decedent's passing with a claim on the estate, the probate process often lasts about a year or longer. It is rarely as short as nine months. Specific facts and complications within an estate can make the process much longer, such as having multiple large debts, assets held in other states or countries, or complicated assets.

It is worth noting that a Spousal Property Petition can also be used to transfer property into the surviving spouse's estate if the surviving spouse is also now deceased. If, for example, an accident left a married couple severely wounded, and one died after the other, the representative of the surviving spouse's estate can transfer the first spouse's community property fully into the estate of the surviving spouse and then distribute it to a beneficiary as per the second spouse's will.

Spousal Property Petition Notice of Hearing

Once the form for a Spousal Property Petition is filled out and sent to the clerk, the surviving spouse (or their representative) has up until the last 15 days before the hearing date to notify a few critical individuals through a Notice of Hearing either in person or by mail. These include:

      • All the other heirs of the decedent.
      • The administrator of the decedent's estate (if probate has been started).
      • All persons interested in the estate have asked for Special Notice through Probate Code Section 1250.
      • In some cases, the Attorney General of California (if the decedents will include a charitable bequest or other considerations).

Other Probate Alternatives

A Spousal Property Petition is not the only way to bypass a lengthy probate process in California. Smaller estates under a specific total value can opt to be transferred to eligible beneficiaries through an expedited or small estate probate process, saving both considerable amounts of time and administrative fees.

The probatable estate size can be further reduced through direct designated beneficiaries (as is the case in transfer-upon-death clauses and Totten trusts) and living trusts, separate entities from the decedent's probatable estate.

When considering these things, it is often a good idea to work with an estate planning professional. A comprehensive estate plan can save you time and simplify the process of distributing your assets after death and making other crucial arrangements for end-of-life care.

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