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Spousal Property Petition Guide: Definition & How to Create One

Creating a spousal property petition is an effective way to transfer property to a surviving spouse without going through full probate. Learn more here.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

When an individual passes away, their property and belongings are passed on to their surviving loved ones. When a Will and other estate planning documents are available, then their estate is distributed per the instructions left behind. When a Will isn’t available, then their estate is distributed using next-of-kin rules. 

This process is overseen by a probate court. In most cases, this process is lengthy, costly, and tedious. Luckily, there are some legal tools that can help expedite the process or bypass it altogether. 

If you are a surviving spouse, creating a Spousal Property Petition could be an effective way to transfer property to your name without having to go through the full probate process. Keep reading to learn how the spousal petition works and when it should be used. 

What is a Spousal Property Petition?

A Spousal Property Petition is a legal tool used to transfer or confirm property to a surviving spouse. This allows the property to transfer without undergoing the full process of probate. 

The Spouse Petition is a state-specific form that can be submitted for consideration. This form is filed with the local county probate clerk and should describe the property in question and include a state explaining why it should pass to the surviving spouse. Any supporting Will or written statement should be attached along with the form. Once the documents are filed, the petitioner will receive a one-time hearing date. At this hearing, the judge will hear the case and will either approve or deny the petition.

If approved, the property does not have to go through the full probate process.

When Should a Spousal Property Petition Work Be Used?

The Spousal Property Petition should be used when a decedent’s surviving spouse is named as beneficiary to any property. This is common when it comes to married couples. However, the probate process may still be required when there are other beneficiaries in question, such as children and other close family members. 

In the absence of a Will or other estate planning document, the probate process will use intestate succession rules to determine the next-of-kin who should inherit the property. These laws vary from state to state, which creates a variety of possible outcomes.

For instance, California is a community property state. Because of this, any community property passes to the surviving spouse. However, any other property can be split amongst the surviving spouse and other beneficiaries, such as children or other relatives. 

There are some cases when a Spousal Property Petition may not be necessary. For instance, there could be an estate where the full probate process is required, such as cases in which disputes between heirs or creditors require litigation. In another instance, community property could be held in a Trust or in other legal structures that allow the property to transfer to the surviving spouse outside of the probate process. 

How Does a Spousal Property Petition Work?

Once the Spousal Property Petition is submitted, the surviving spouse or other representative will receive a hearing date to appear before the court.

This individual has up to fifteen calendar days before the hearing date to notify other interested parties. This is done using a Notice of Hearing either in person or through mail. Interested parties include:

  • Other heirs and beneficiaries of the decedent

  • Administrator or Executor of the estate

  • Any other parties who have requested Special Notice through Probate Code Section 1250

  • Attorney General of California (in specific situations, such as if the decedent included a charitable bequest)

What Are Alternatives to Creating a Spousal Property Petition?

Mentioned earlier, there may be cases in which creating a Spousal Property Petition isn’t necessary. There are legal tools available that can ensure your assets are passed to your surviving spouse more automatically and with less hassle. Here are some examples to consider:

  • Living Trust: A Trust is a popular estate planning tool that is mainly used to avoid probate. Any property transferred to the Trust is technically owned by the Trust and not the individual. Therefore, the property is not included in their estate and does not have to go through the probate process. A Living Trust allows the Trustor to maintain control and use of Trust assets during their lifetime. When they pass away, the Trust becomes irrevocable and its assets and properties are transferred to its beneficiaries.

  • Interspousal Transfer Deed: If you wish to pass jointly owned property automatically to your spouse when you pass away, you may want to consider using an interspousal transfer deed. This is a special type of deed used for jointly owned property. If one of the spouses were to pass away, then their portion of the property title is automatically passed to the surviving spouse such that they gain sole ownership.

  • Transfer-on-death Deed: A Transfer-on-death (TOD) deed allows you to pass property directly to a beneficiary of your choosing when you pass away. This does not necessarily have to be your spouse, but it can certainly be used for your surviving spouse. When you pass away, the deed transfers automatically to your beneficiary outside of the probate process.

  • Totten Trust: A Totten Trust is a special type of bank account with a beneficiary designation. When the owner of the Trust passes away, then the funds held in the Trust are released immediately and automatically to your beneficiary. You have the option to name your spouse as your beneficiary so that they do not need to use the Spousal Property Petition in probate.

  • Small Estate Probate: Last but not least, some estates are small and uncomplicated enough that they don’t warrant the full-blown probate process. Some states allow survivors to petition for a small estate probate. This is essentially a sped-up version of probate that allows property to pass to beneficiaries much faster. These states set thresholds for small estates. If the estate in question falls under this value threshold, then they are eligible for the small estate probate. A representative of the estate must file the relevant petition or affidavit. 

Update Your Estate Plan Today

Marriage provides a number of protections, with one of them being protection when it comes to property. When a spouse passes away, in most cases, the surviving spouse holds more rights and protections over other beneficiaries. If a decedent’s estate is subject to probate, then the surviving spouse should certainly explore whether a Spousal Property Petition is an option.

If approved, this petition allows for property to pass legally to the surviving spouse of a decedent without having to go through the full probate process. This can save the survivor from the headache of probate, which is a lengthy and costly judicial process that can take several months to several years.

As someone planning their estate, know that there are tools available to keep your property out of the probate process entirely. When properly executed, your beneficiaries won’t have to worry about filing any petitions, let alone the probate process is full. This guide outlined a few examples of legal tools that allow you to transfer property automatically and directly to your loved ones outside of probate if you were to pass away.

The most popular estate planning tool for this purpose is the Trust. Living Trusts and Irrevocable Trusts are two popular types of trusts that protect your property from the probate process. There are additional benefits that make Trusts even more attractive, such as privacy, control, and added protection from certain estate planning taxes. By removing assets and property out of your personal estate and into a Trust, you’ll have peace of mind knowing that property will be passed to your intended beneficiaries without being subject to the opinion of the court. 

Find out how you can update your Estate Plan to include a Trust today!

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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.


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