As I went through my outline from my 2008 presentation, for NBI, on California probate law I realized I had pretty extensive materials on surviving spousal rights. I hope you find it interesting! If you have any questions let me know or visit our website at www.californiaprobate.info
1:50 – 2:35 John B. Palley
a) the surviving spouse;
b) minor children;
c) adult children who are incapacitated from earning a living and were dependent in whole or in part upon the decedent for support;
d) upon Court order a family allowance can also be provided to other adult children who were actually dependent on the decedent and a dependent parent.
PRACTICE POINTER: Though administration is not required by the probate code it may be required by the top lawmaker… a title company! That is, at least a spousal property order confirming the asset belonging to and/or transferring to the surviving spouse.
§ 721. Contracts with each other and third parties; fiduciary relationship
(a) Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:
(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.
PRACTICE POINTER: A Spousal Property Petition should always be the first petition you consider when dealing with a surviving spouse. It may not work in every case and may not be the best answer but you should always consider it as it is typically the most economical way to transfer property to the surviving spouse. If you file a full probate, without considering the use of an SPP, the Court could ask for an allegation that the use of an SPP was offered to the client before filing the full probate.
F. Other miscellaneous provisions relating to surviving spouses
1. Pursuant to PC13600 the surviving spouse may collect unpaid compensation up to $5,000 without procuring Letters by affidavit as laid out in PC 13601.
2. Other petitions to avoid full probates may be utilized even if SPP won’t work such as Petition to determine succession to real property ($100,000 or less), 13100 declarations, etc….