March 29, 2018

Spousal Property Petition

A spousal property petition can be used by a surviving spouse to collect the community property of their late spouse. This method is preferable to probate because probate typically takes anywhere between 9-15 months to complete and a spousal property petition can be completed in roughly 2-3 months (depending on the court's calendar). The distinguishing feature is that the property in question must be the late spouse's community property. A spousal property petition cannot be used to collect the separate property of the late spouse.

A recent unpublished appellate opinion addressed this issue:

"Jackson and decedent had been married for 36 years when decedent died in March 2016. Ten years prior, using funds she inherited from her parents, Jackson had purchased a home (the property) in Rio Vista, California, with title held by successor trustees of the family trust. Jackson and decedent lived together in the home, and maintained the property using community property funds. In 2011, the property was transferred from the successor trustees to Jackson and decedent as joint tenants.

Two years later, Jackson and decedent were struggling to pay their expenses and determined they would take out a reverse mortgage on the home. When they applied for the reverse mortgage, the lender advised Jackson's name would need to be removed from title to the property because she was not yet 62 years old and thus, did not qualify. In order to obtain the reverse mortgage, Jackson signed an interspousal transfer grant deed, granting the property to decedent as his sole and separate property."

The couple did not seek legal counsel about the title change and Jackson states the "reverse mortgage company did not provide guidance on this issue." All funds from the reverse mortgage were deposited to the couple's joint bank account, and all expenses related to maintaining the property, including property taxes, were paid from the same account.

In 2016, decedent died intestate. He was survived by Jackson and three adult children. Jackson petitioned the trial court to have the property distributed entirely to her as the surviving spouse. After continuing the hearing twice and accepting supplemental briefing and evidence from Jackson regarding her interest in the property, the trial court determined the property was decedent's sole and separate property. The trial court ordered one-third interest in the property to Jackson as the surviving spouse."

Solano County, Superior Court No. FPR047868