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What Is the California Spousal Property Petition?


The spousal property petition is a legal process in California that allows surviving spouses or domestic partners to affirm or assume full ownership of certain property without going through the full probate process. Probate can be a lengthy and costly procedure, and the spousal property petition offers a more streamlined alternative for eligible individuals. A financial advisor with estate planning experience can help you make a plan for distributing your assets after you’re gone.

Who Can File a Spousal Property Petition in California?

While the name of this petition implies it’s solely reserved for spouses, certain non-spouses can also file a spousal property petition in California:

  • Domestic partners: Registered domestic partners are also eligible to file spousal property petitions.
  • Estate representatives: If the surviving spouse or partner dies before their petition can be filed, a representative of their estate can do so on their behalf.
  • Conservators: If the surviving spouse has a conservator, that person or entity can also file a spousal property petition.

How to File a California Spousal Property Petition

A man fills out Form DE-221 to file a spousal property petition in California.

Here’s a step-by-step look at the process of filing a spousal property petition in California:

1. Fill Out Form DE-221

The first step is to complete Form DE-221, the spousal property petition. This form will require you to provide detailed information about yourself, your deceased spouse and the property you wish to transfer. Ensure that you fill out the form accurately and completely.

2. File Form DE-221 With Clerk

Once you’ve filled out Form DE-221, you need to file it with the clerk at the appropriate California superior courthouse. If your spouse or domestic partner had a will, attach to your petition. You’ll also want to attach any written agreement you had with your spouse or partner that outlines your ownership of community property.

3. Notify Necessary Parties 15 Days Before Court Hearing

After filing the petition, you must notify all interested parties at least 15 days before the scheduled court hearing. Interested parties typically include heirs, beneficiaries, the executor or administrator of your spouse’s estate and anyone else with a legitimate interest in the property transfer. This notice ensures that all relevant parties have an opportunity to object to the transfer.

4. File a Spousal Property Order

Form DE-226, the spousal property order, is the next form you’ll need to complete. It outlines the court’s decision regarding the property transfer. Make sure to fill out this form accurately and submit it to the court at least four days before the scheduled hearing. This is what the probate judge will sign if they approve your petition.

5. Attend Court Hearing

Once the petition has been filed and notice served, the court will review your petition. If your documentation is orderly, your claims are accurate and there are no valid objections, the court will approve the petition.

6. Transfer of Property

After court approval, you can work on transferring the property’s title into your name. This may involve working with a title company or directly with the relevant institutions, such as banks or real estate offices.

Community Property vs. Separate Property

A judge uses her gavel to start a spousal property petition hearing.

How quickly or smoothly you take full control of property following your spouse or partner’s death may depend on whether those assets are community property or separate property.

Community property refers to assets acquired by a married couple during their marriage and owned collectively by the couple. In California, this typically includes income earned, a home and other assets acquired by either spouse from the date of marriage until the date of one spouse’s death.

On the other hand, separate property comprises assets that are not considered equally owned by the couple. This can include property owned by one spouse before marriage, gifts and inheritances received by one spouse during the marriage and certain personal injury awards.

Typically, a spousal property petition can help community property smoothly transfer to the surviving spouse when the other spouse dies. However, probate may be required to determine ownership of separate property if there are other beneficiaries listed in the decedent’s will or if they didn’t have a will.

Bottom Line

The California spousal property petition is a legal process that allows surviving spouses and domestic partners to simplify the transfer of assets after their spouse or partner’s passing. By following the required steps, including filling out the proper forms, notifying interested parties and attending the court hearing, surviving spouses can ensure a smooth and legal transfer of assets. However, filing this petition won’t always ensure an expedited probate process, especially if there are other beneficiaries and separate property that must be divvied up and distributed.

Estate Planning Tips

  • It’s important to understand the various estate planning tools that you have at your disposal. While a will is a central component of a person’s estate plan in California, a living trust can also play an important role. Here’s a look at how living trusts and wills stack up against each other in California.
  • A financial advisor with estate planning expertise can be a valuable partner as you plan for the future. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.

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