Spousal Property Petition

Transferring Assets to the Surviving Spouse

All property that passes to the surviving spouse or domestic partner can be transferred under Probate Code §13500, et seq. with a Spousal or Domestic Partner Property Petition (Form DE-221)  All the real estate and personal property of the decedent can be transferred to the surviving spouse and there is no limit on the value of the decedent’s estate that can be transferred to the surviving spouse.  This probate procedure can only be used by the surviving spouse; it cannot transfer any property to any other heir.


As required by Revenue & Taxation Code § 480(b), the first step is to file a Change of Ownership Statement – Death of Real Property Owner (Form BOE 502-D) with the county assessor in the county in which the decedent owned real estate for each parcel of real estate.


Note that since the value of the value of the assets don't matter, there is no requirement to appraise the property through the probate referee with an Inventory and Appraisal (Form DE-160, and Form DE-161).


The surviving spouse can file a Spousal or Domestic Partner Property Petition (Form DE-221) with the probate court in either the county where the decedent lived or where the real estate is located.  A certified copy of the death certificate must be attached, as well as the will, if any.  The petition is signed by the surviving spouse or other personal representative of the estate.


The spousal property petition seeks to determine what property passes to the surviving spouse, and confirmation of what property belongs to the surviving spouse.  In general, all community property and quasi-community property goes entirely to the surviving spouse.  (Probate Code §6401(a) and (b).)  While all separate property may go either half to the surviving spouse when there is one child or at least one parent who survives the decedent, or a third to the surviving spouse if there is more than one child of the decedent.  (Probate Code §6401(c).)


When the petition is filed with the court, the court clerk will set a date for a court hearing.  The surviving spouse mails notice of the hearing to all the beneficiaries of the estate and anyone named in the will, if any.  At the hearing, anyone can come and consent or make objections.  Usually, the court approves the petition at the hearing and signs the probate court Spousal or Domestic Partner Property Order (Form DE-226).


The spousal property order must then be recorded with the county recorder in the county where the real estate is located, along with a preliminary change of ownership report as required by Revenue & Taxation Code §480.3.  The property then is in the name of the surviving spouse.


Although a transfer between spouses upon the death of a spouse is a transfer that is exempt from reassessment for property tax purposes under Revenue & Taxation Code §63(b), there is no form to be filed with the county assessor to exclude the transfer of the real estate from reassessment for property tax purposes.  However, the tax assessor may require additional information to exempt the transfer.

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