Can You Use a California Spousal Property Petition?

When your spouse dies, are you eligible to use a California spousal property petition?

Losing your partner is a devastating experience. Not only must you learn how to navigate through life on your own, you must also handle the legal process of closing out their estate. Thankfully, a California spousal property petition may be able to help you. However, there are some qualifying factors that must be addressed before you decide to use the form.

Who Qualifies to Use a California Spousal Property Petition?

To use a California spousal property petition, you must be the legal spouse or the representative or conservator of the surviving spouse. You can also be a surviving domestic partner provided that the domestic partnership was registered.

Can a Spousal Property Petition Be Filed If There Is a Will?

If there is a will and only beneficiary in the will is the surviving spouse or domestic partner, a spousal property petition can be used. The benefit of using this petition is found primarily in simplifying the probate process.

If there is a will and it lists other beneficiaries, the petition can still be used, but only to claim the property being left to the surviving spouse or domestic partner. Generally, this means the form is used to claim the community property that was part of the marriage. The rest of the outsets going to other beneficiaries must usually go through the full probate process.

Related: CA Probate Law: What Assets Will Pass Through Probate?

What about Separate Property If There Is No Will?

If there is no will, California probate court will follow intestacy laws. These laws determine how assets are distributed. The separate property must goo through the entire probate procedure. If you’re unsure whether you’re dealing with something that is community or separate property, talk with a probate lawyer.

Items Needed to File a Spousal Property Petition in California

If you plan to file a spousal property petition in California, you’re going to need some other documents as well. In addition to the Spousal Property Petition (DE-221), you’ll also need to attach a copy of the will if you found one. You should also include a certified copy of the death certificate. If there wasn’t a will, you’ll need to show that the property you’re requesting is community property. Take the marital home as an example. If it was purchased during the marriage, it is most likely community property. The deed would include both your name and your spouse’s name. It may also state in the language of the document that the home is community property. To claim the house, you’d want to provide a copy of the deed.

After you receive a hearing date, you’ll need to complete a Spousal Property Order (DE-226). It’s important to wait until you have the hearing date because you’ll need to use a Notice of Hearing (DE-120) to provide proper notice of the death.

If your Spousal Property Order is approved by the Judge during your hearing, it will be signed and given back to you. You must file it with the court clerk. Ask for several certified copies of this Order. You’ll need them to change the deed to a piece of community property or to remove your spouse’s name from any joint accounts.

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