August 19, 2011

Spousal Property Petition

Spouses or registered domestic partners are given privileged status in regards to collecting the assets of their deceased partner’s estate. The following are some questions that address this topic. 

1. What is spousal or domestic partner property petition? 

Spousal or domestic partner property petition is where the surviving spouse or registered domestic partner collects the assets of the deceased partner without formal administration, namely probate. Prob C §§13500-13660. 

2. When can a person utilize this? 

This process can be utilized when a husband or wife dies intestate leaving property that passes to the surviving spouse under California’s intestacy laws, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse. Prob C § 13500. This aforementioned law also applies to registered domestic partners. Fam C § 297.5(c).

For example, assume Hal and Wendy were married in California and owned their California home as tenants in common. They purchased the home for $500,000 during marriage with funds exclusively derived from Hal’s job at the Dutch Goose in Menlo Park, CA (my favorite burger place in the Bay Area). Hal later passed away due to a tragic Vespa accident on Interstate 280 without ever having written a will. Thus, Hal died “intestate.” Under normal circumstances, Wendy would be required to go through probate to transfer the home to her. However, since Wendy is the surviving spouse, Wendy may utilize the spousal probate petition to transfer the home from Hal and Wendy to just Wendy. 

3. How does a person start the process? 

First, the surviving spouse or domestic partner files a petition in the superior court in the county in which the decedent spouse's or domestic partner's estate may be administered. Prob C §13650; Fam C §297.5(c). For instance, if the decedent passed away in Campbell, CA, the petition would be filed in Santa Clara Superior Court. For reference, the form used is Judicial Council form Spousal or Domestic Partner Property Petition (Judicial Council Form DE-221). 

4. How does a person complete the process? 

If the person complies with all the legal requirements for filing the petition, the Probate Court will sign an order confirming the transfer of the assets of the deceased partner to the surviving partner. For reference, the form used is Judicial Council form Spousal or Domestic Partner Property Order (Judicial Council Form DE-226) .

5. How long does the process take? 

The process should take a few months to complete. Most courts now have access to case files on the Internet, so you can look up cases to get a better idea of how long the process might in your specific county. 

6. How much are the attorney fees? 

Unlike regular probate, there is no set schedule for compensating an attorney for spousal or domestic partner property probate. Also, no court approval of the agreement is required. Prob C § 13660. 

7. Is the surviving spouse or domestic still liable for the 
decedent’s debts? 

Yes, the surviving spouse or domestic partner is personally liable for the decedent’s debts. Prob C §13550; Fam C §297.5(c). Thus, the survivor cannot inherit the property absent the liabilities, if any, that are attached to it. This is consistent with other types of probate and non-probate transfers in that the beneficiary may not inherit an asset without assuming the attached liabilities. This is a sensible rule because a prudent person would agree that one should not be allowed to receive all the benefits without incurring any burdens. 

The one exception to this general rule is the case of exoneration. Exoneration is where a will specifies that an encumbered piece of real property will have the encumbrance, a mortgage for example, paid off before it is transferred to the beneficiary. Prob C § 2113. However, a person must write in their will that they want exoneration to occur because the default rule is to not pay off the encumbrance prior to transfer.