If the decedent died without a will.

If the decedent had no will, their estate is subject to California’s intestate succession law. A spousal property petition may be used to accelerate the transfer of community property; however, if the decedent owned separate property, those separate assets will likely go through probate.

Filing a spousal property petition may not always avoid probate, but it can often expedite the transfer of community property or help resolve smaller estates without the need for a court and judge.

How to File a Spousal Property Petition

Under California Probate Code, a spousal petition can be filed by the following people:

  • A surviving spouse
  • A surviving domestic partner
  • A representative of the estate

To request expedited proceedings, the eligible party must submit a copy of the spousal property petition to the clerk of the court in the same county where the decedent passed away. If the decedent had a will, a copy must be attached to the petition. Similarly, any property deeds and ownership documents should also be presented, so the court can determine whether to accept the petition and how to transfer eligible assets.

Once a request is filed, the court will inform the decedent’s relatives and other interested parties of the petition. If nobody objects, the court will likely approve the spousal property petition.

Deciding If a Spousal Property Petition Is Right for You

If the decedent did not establish a trust or make arrangements for their loved ones to avoid probate, a spousal property petition can save time and money. However, the surviving spouse should still discuss their options with an experienced estate planning attorney. If the surviving spouse is expecting someone to challenge the will or file a probate contest, it may be better to take the estate through full probate.


Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.