If Your Spouse Has Died

Spousal or Domestic Partner Property Petition

Spousal property succession is the transfer of assets from a spouse who has died to the surviving spouse by one hearing and one court order. The passage or transfer of property to the surviving spouse without formal probate administration is by Spousal Property Petition.

When a husband or wife dies leaving real property that passes to the surviving spouse, whether by intestate succession or by devise, the property ordinarily passes to the survivor without the necessity for administration. [Prob. Code, § 13500] Procedures are:

  • File Petition in Probate Court and pay filing fees
  • Notify children and devisees in Will, if any, of petition and hearing
  • Attend hearing
  • Prepare Order from Court to transfer Assets to Spouse
  • File and record Order with County Recorder for transfer of real property
  • Submit order to financial institutions for transfer of personal property

Tax consequences: There are no property tax, capital gains tax and estate tax consequences for transfers to a spouse due to death of one spouse.

Liability for decedent’s debts:  Generally, a surviving spouse is personally liable for the debts of the deceased spouse chargeable against property that passes to the survivor without administration