Spousal Property Petitions and LOCAL RULES

We have discussed California Spousal Property Petitions (SPPs) before. As a refresher an SPP is an abbreviated probate procedure used to clear title to property when a spouse dies. It doesn’t work in all cases but it works in many where one spouse dies and there is a surviving spouse. It works for both community and separate property. It deals with transferring property to the survivor AND confirming the survivor’s property as community.  The latter can be a big deal for capital gains purposes by giving the surviving spouse a full step-up in basis.

Spousal Property Petitions are not always simple and easy.  Yes, they can be significantly cheaper than a full probate and significantly faster to finish. However, there are intricacies that many people, even practicing lawyers, don’t understand. I recently had two instances where I had reason to explain about LOCAL RULES to a potential client. In one case the person had a lawyer but the lawyer was clueless and in the second the individual was trying to do the SPP himself without the aid of an attorney.

Not all counties have local rules regarding spousal property petitions. Check the county you are filing in. You can Google it by searching for the county where your SPP will be filed (county of residence at death of the spouse who died) and then putting “court local rules probate.”  From there you search through and see if you anything about spousal property petitions.

In my experience the counties that have local rules for SPPs have similar provisions. They are trying to determine how much of the property is “separate property” and how much is “community property.”  The issue of CP v. SP can be HUGE in determining who gets property and the tax treatment.

For example, I know that Orange county has a very complete local rule on spousal property petitions. I thus Googled “Orange county court local rules probate.” The first hit is this page.  From there I searched to probate and then looked for spousal property petitions. I found the section I want!  I have pasted it below for your convenience.

What I do in each case is take language, similar to the Orange County local rule, and I create a declaration for the surviving spouse to sign.  As you can see it talks about when they were married, the origins of the property, if there was a pre or post-nuptial agreement, etc…. I will state the obvious but you should be truthful of course.

As stated above this type of petition is wrought with difficulty that people don’t see. Be careful and I strongly encourage you to hire an EXPERIENCED California probate attorney. I think you will be thankful when it’s over!

-John Palley



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)

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