As a probate attorney since 1994 I have prepared and file a lot of Spousal Property Petitions over the years. The main form is state form DE-121 which you can find here on the web. I think a lot of people gloss over the many nuances in these cases and thus I wanted to talk about things that can come up in these cases. I say this because I think a lot of people have the misunderstanding that since their spouse died they get all the assets. This is not always the case and I will highlight this issue below. So here are some random thoughts on Spousal Property Petitions in California Probate Courts.
WHAT DO YOU CHECK IN PARAGRAPH 1 of DE-121:
First of all though the main form is a state wide Judicial Council form the form is anything but easy. The toughest issue starts at paragraph 1. It says the Petitioner (often the surviving spouse) requests:
a) determination of property passing to the surviving spouse or surviving registered domestic partner without administration.
b) confirmation of property belonging to the surviving spouse or surviving registered domestic partner.
What does these two things mean? What’s the difference? Do you check a, check b, check both boxes, or what? Well, it depends! You need to look at the facts of the case. If there is an argument for community property then you probably want to check both boxes. Later in the petition (paragraph 7) you can explain which assets apply to a and which apply to b.
A common situation is a house purchased during marriage in one spouse’s name. This is often done for financing reasons as one spouse often has better credit. So the house is purchased in that spouse’s name, they fail to ever add the other spouse and then of course the spouse whose name is on the deed dies. You need to look at a few things in this hypothetical:
1) what was the source of the down payment money (from before marriage, was it a gift during marriage or was it from job during marriage);
2) what was the source of the mortgage payments (same as above);
3) is there a written agreement about who owns the house?
All of these are important because typically when a house is financed during marriage the spouse whose name is not on the deed will sign a spousal or quitclaim deed to the other spouse as “their sole and separate property.” So in the common hypothetical the surviving spouse has signed off on the deed. This can be a problem but is certainly not a catastrophe at death. The answers to the above questions still matter.
DOES IT MATTER IF THERE IS A WILL IN A SPOUSAL PROPERTY PETITION CASE:
Having a will, which gives the assets to the surviving spouse, will greatly help a spousal property petition and increase the likelihood of success significantly. That is because you don’t have to prove an asset is community property which can often be difficult if not impossible. It is very important for spouse’s to have wills even if it seems obvious and simple that everything should go to the surviving spouse. I should add the will should be legally valid. The main options for a will are: 1) a document typed or written in someone else’s hand that is signed, dated and has two disinterested witnesses; or 2) a holographic will which is a document written by the decedent in their handwriting, signed and dated by them. Wills are very important in SPP cases. Yes, trusts are better as they avoid an SPP but a will is the next best thing.
WHAT OTHER DOCUMENTS ARE NEEDED BESIDES DE-121:
The use of DE-121 is pretty standard. However, what else is needed? Some counties, like Orange County, for example have mandatory like forms or declarations that must be provided. I am going to paste all of local Rule 607.10 but in particular look at the list of questions you must answer. The answers to those questions help determine if community or separate property is involved. I have developed this into a standard form that I use in most of my spousal property petition cases even in other counties beside Orange. I do this because it answers a ton of questions that the Judge or probate court attorney or probate court File Examiner are likely to have.
Rule 607.10 Spousal Property Petitions (Probate Code Sections 13650-13660)
A petition containing an allegation that the character of any property was transmuted
after December 31, 1984, by decedent and surviving spouse must be based on a writing (Family
Code section 852). A photocopy of the writing showing signatures must be attached to the
If a petition contains an allegation that the character of any property was transmuted
before January 1, 1985, by decedent and surviving spouse, such claim may be proved either by a
writing or by other supporting facts which must be set forth in the petition.
A petition must list, on separate schedules, the decedent’s interest and the surviving
spouse’s interest in the property. For example, if it is alleged the decedent and surviving spouse
owned as community property a piece of real property, the decedent’s undivided one-half (1/2)
interest in such property should be listed on one schedule and the surviving spouse’s undivided
one-half (1/2) interest in the same property listed on another schedule.
The following requirements do not apply to a petition if the entire estate of the decedent
passes to the surviving spouse either under a will or pursuant to interstate succession and one of
the following applies: (a) the petition only seeks determination of the passing of the property
without a finding of the character (community or separate) of the property; or (b) the decedent
and surviving spouse executed a written agreement transmuting or confirming all property
owned at the date of the agreement and all after-acquired property into community property; or
(c) the decedent and surviving spouse executed a written agreement which transmuted or
confirmed the subject property to community property and the date of acquisition of the subject
property is alleged. If (b) and/or (c) apply, copies of all agreements must be attached to the
petition. In all other cases, the petition must be supplemented to include the following
A. Date and place of marriage; and domicile at the time of marriage;
B. Dates decedent and a surviving spouse came to California, if not domiciled in
California at time of marriage or resided in another state after marriage;
C. If decedent owned any real or personal property on the date of marriage, a
description of such property and the approximate value;
D. Decedent’s occupation and net worth at the time of marriage;
E. Whether or not the decedent received any property after the date of marriage by
gift, bequest, devise, descent, proceeds of life insurance or joint tenancy
survivorship and, if so, a description of such property, giving approximate values
and dates of receipt;
F. If any property was received by decedent under E above and is part of the estate,
identify the property;
G. The exact title vesting as of the decedent’s date of death for each item of property
and a statement whether it was acquired after December 31, 1984;
H. If claims are based on any document, attach a photocopy of the document
showing signatures; and
I. In addition to the above, set forth any additional facts upon which claim of
character of property is based.
(Revised effective January 1, 1994)
Spousal Property Petitions are not simple. There are ton of nuances and gotchas if you are not careful. Using an experienced California probate attorney is important in these cases.
Best of luck with your legal matters. -John