Last updated: October 2026
A spousal property petition lets a surviving spouse or registered domestic partner receive property without a full probate. The probate court confirms what passes to the survivor and orders that no administration is needed. An heirship petition, filed in an open probate, asks the court to decide who is entitled to the estate and in what shares. Both are often uncontested, but disputes arise over who the heirs are and whether property is community or separate. Bay Legal handles both throughout California.
Spousal property petition: a probate court petition confirming that property passes to a surviving spouse or domestic partner without full administration.
What is a spousal property petition?
Under Probate Code section 13650, a surviving spouse can ask the court to confirm that property passes to them and that no administration is needed. Registered domestic partners have the same rights (Family Code section 297.5). The petition can also confirm the survivor’s own half of the community and quasi-community property (sections 100 and 101).
There is no dollar limit. Unlike the small estate affidavit, which has a value cap, a spousal property petition depends on the type of property, not its value. Property the will leaves in trust, or gives the spouse only a qualified interest in, still requires administration (section 13501).
How does a spousal property petition work?
- Gather the documents. The will, if any, deeds, account statements and any written agreement between the spouses about community property.
- File the petition. Use Judicial Council form DE-221 in the county where the decedent lived. It describes each asset and the facts showing it passes to the survivor (section 13651).
- Give notice. Heirs, devisees and any named executor receive at least 15 days’ notice of the hearing (sections 13655 and 1220).
- Hearing and order. The court issues an order on form DE-226 describing the property (section 13656). Once final, the order is conclusive on everyone (section 13657).
- Record and retitle. Record the order for real property and present it to banks and brokers to retitle accounts.
Attorney’s fees for a spousal property petition are set by agreement with the client, not by the court (section 13660).
Does a surviving spouse always need a court order?
Not always. After 40 days, a surviving spouse can sell or refinance community or quasi-community real property without a court order, unless someone has recorded a notice claiming an interest under the will (sections 13540 and 13541). In practice, title companies often ask for a court order or a recorded affidavit before insuring a sale, which is why many spouses file the petition anyway.
What disputes come up in spousal property petitions?
- Community or separate property. Property acquired during marriage while living in California is presumed community (Family Code section 760). Property owned before marriage or received by gift or inheritance is separate (section 770).
- Claimed transmutations. A change in the character of property between spouses is valid only if made in writing by an express declaration from the spouse whose interest is harmed (Family Code section 852; Estate of MacDonald (1990) 51 Cal.3d 262).
- Unequal division agreements. Spouses can agree in writing to divide community property unevenly, and the petition must disclose any such agreement.
- What the will actually gives. If the will leaves property in trust or with conditions, that property goes through administration instead.
Is the surviving spouse liable for the decedent’s debts?
Yes, up to a limit. A spouse who takes property without administration is personally liable for the decedent’s debts, capped at the date-of-death net value of the property received and the spouse’s own nonexempt half that was not administered (sections 13550 and 13551). The spouse can avoid this liability by electing to have the community and separate property administered in probate instead (sections 13502 and 13553). Creditors have one year from death to sue (Code of Civil Procedure section 366.2).
What is an heirship petition?
In an open probate, the executor or anyone claiming a share can ask the court to decide who is entitled to distribution and in what shares (section 11700). It can be filed any time after letters issue and before the order for final distribution. Interested persons receive 15 days’ notice (section 11701) and may file a written statement of their interest. A person who does not file one cannot take part further and is bound by the result (section 11702). Once final, the order is conclusive (section 11705).
For trusts, the comparable petition asks the court to determine who takes when the trust ends (section 17200(b)(4)).
Who inherits if there is no will?
The surviving spouse or registered domestic partner takes all of the community and quasi-community property (section 6401). The spouse’s share of the decedent’s separate property depends on who else survives:
| Who else survives | Spouse’s share of separate property | Rest goes to |
|---|---|---|
| No children, grandchildren, parents, siblings or nieces and nephews | All | — |
| One child (or the issue of one deceased child) | One-half | The child |
| No children, but a parent, sibling, or a sibling’s issue | One-half | Parents, or if none, siblings and their issue |
| More than one child, or one child plus the issue of a deceased child | One-third | The children and their issue |
With no surviving spouse, the estate passes to children and their issue, then parents, then siblings and their issue, then grandparents and their issue, under section 6402. An heir must survive the decedent by 120 hours (section 6403). Half-siblings inherit the same share as full siblings (section 6406). A stepchild or foster child inherits only if the relationship began in childhood and clear and convincing evidence shows the parent would have adopted the child but for a legal barrier (section 6454).
Frequently Asked Questions
Is there a dollar limit on a spousal property petition?
No. Probate Code sections 13650 to 13660 set no value cap. What matters is the type of property: property passing outright to the surviving spouse or registered domestic partner by will or intestacy, plus the survivor’s own half of community property. Property left in trust or with conditions still goes through probate administration under section 13501.
Do I need a spousal property petition if everything was in a living trust?
Usually not for the trust assets, which pass under the trust’s terms through the successor trustee. A petition is used for property outside the trust, such as a house or account still titled in the decedent’s name, that passes to the surviving spouse by will or intestacy. Review how each asset is titled before deciding.
What happens if I ignore notice of an heirship petition?
Under Probate Code section 11702, a person who does not file a written statement of their interest at or before the hearing cannot participate further in the proceeding. Their interest is not otherwise affected, but they are bound by the court’s decision, which becomes conclusive under section 11705. If you believe you are an heir, file a statement before the hearing.
Can a stepchild inherit if there is no will?
Only in limited cases. Under Probate Code section 6454, a stepchild or foster child inherits as a child if the relationship began during the child’s minority, continued throughout their joint lifetimes, and clear and convincing evidence shows the stepparent or foster parent would have adopted the child but for a legal barrier. Otherwise, a stepchild does not inherit by intestacy.
Is a surviving spouse responsible for the decedent’s debts?
Up to a limit, if the spouse takes property without administration. Under Probate Code sections 13550 and 13551, liability is capped at the date-of-death net value of the property received and the spouse’s own nonexempt half that was not administered. Electing to administer the property in probate avoids this personal liability under section 13553.
Related Questions
What is the 120-hour rule?
Under Probate Code section 6403, a person who does not survive the decedent by 120 hours is treated as having died first for intestate succession. Survival must be shown by clear and convincing evidence.
Do half-siblings inherit in California?
Yes. Under Probate Code section 6406, relatives of the half blood inherit the same share they would if they were of the whole blood, subject to the adoption rules in section 6451.
Does a lifetime gift reduce an heir’s share?
Only if it is documented. Under Probate Code section 6409, a gift counts as an advancement against an heir’s intestate share only if the decedent or the heir said so in writing.
What is a transmutation?
A transmutation is an agreement between spouses changing property from community to separate, or the reverse. Under Family Code section 852, it is valid only if made in writing by an express declaration from the adversely affected spouse.
About the attorney
Ryan R. Wong handles Bay Legal’s probate court matters, including spousal property petitions, heirship petitions and court-supervised estates, as well as probate and trust litigation. Ryan has practiced in the probate courts of Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. This work is part of Bay Legal’s Probate & Trusts practice.
Talk to a California probate attorney
If your spouse or partner has died and property is still in their name, start by listing each asset and how it is titled. To discuss a spousal property petition or an heirship question, call the office nearest you or email intake. For the full court process, see estate administration.
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This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.