Spousal Property Petition in California | Form DE-221 Guide

When your spouse passes away, you're dealing with overwhelming grief while facing complex legal questions about property and assets. One of the most important questions: Do you need to go through formal probate to transfer your spouse's property to yourself?

As a Glendale probate attorney who has helped many surviving spouses navigate this process, I have good news: California provides a streamlined procedure called a Spousal Property Petition that allows surviving spouses to transfer property without the full expense and delay of formal probate.

In this comprehensive guide, I'll explain what a Spousal Property Petition is, when you can use it, the step-by-step process, Form DE-221 requirements, community property rules, timeline expectations, and how this compares to full probate.

What Is a Spousal Property Petition?

A Spousal Property Petition is a simplified court procedure that allows surviving spouses or domestic partners to transfer property to themselves without full probate administration.

Legal foundation: California Probate Code Sections 13500-13660

Also called:

• Spousal Property Order
• Set-Aside to Surviving Spouse
• Confirmation of Property to Surviving Spouse

Key benefits:

• Faster than full probate (30-60 days vs. 12-18 months)
• Less expensive ($2,500-$5,000 vs. $20,000-$50,000+)
• Simpler process
• No executor appointment needed
• No formal estate administration
• No bond required
• No creditor publication required (in most cases)

Primary form: Spousal or Domestic Partner Property Petition (Form DE-221)

When Can You Use a Spousal Property Petition?

Spousal Property Petitions are available only in specific situations involving community property and property passing to surviving spouse.

Situation #1: Community Property to Surviving Spouse

Most common use: Confirming that community property passes to surviving spouse

California Probate Code Section 13500

Requirements:

• You were legally married or registered domestic partners
• Property is community property
• Property passes to you (either by will or by law)
• No probate proceeding is pending or granted

What property qualifies:

• Community real property
• Community bank accounts
• Community investment accounts
• Community business interests
• All property acquired during marriage (presumed community unless proven separate)

Example: You and your spouse owned your home as community property. After spouse's death, you want to transfer title to yourself alone. Spousal Property Petition confirms the property is yours.

Situation #2: Separate Property Passing to Surviving Spouse

California Probate Code Section 13650

When available: Deceased spouse's separate property that passes to you

Requirements:

• Property passes to you under spouse's will, OR
• Property passes to you under intestate succession (no will)
• No probate proceeding is pending

Example: Your spouse inherited a house from their parents (separate property). Their will leaves it to you. Spousal Property Petition can transfer title to you.

Situation #3: Property in Other Forms That Should Have Been Community

California Probate Code Section 13502

Purpose: Corrects situations where community property was improperly held in one spouse's name alone

When used:

• Property acquired during marriage
• Purchased with community funds
• Should be community property
• But titled in deceased spouse's name only

Effect: Court determines property is actually community property and confirms it passes to surviving spouse

Property That CAN Be Transferred via Spousal Property Petition

Real property:

• Primary residence
• Vacation homes
• Rental properties
• Undeveloped land
• Any real estate

Personal property:

• Bank accounts
• Investment accounts
• Stocks and bonds
• Vehicles
• Business interests
• Personal belongings
• Any tangible or intangible property

Important: No dollar limit. Unlike small estate procedures, Spousal Property Petition works regardless of estate value.

Property That CANNOT Be Transferred via Spousal Property Petition

Property that doesn't qualify:

Assets with designated beneficiaries:

• Life insurance with named beneficiary (passes directly)
• Retirement accounts (IRA, 401k) with beneficiary designation
• Payable-on-Death (POD) accounts
• Transfer-on-Death (TOD) accounts
• Reason: These pass by contract, not through probate

Joint tenancy property:

• Property held as joint tenants with right of survivorship
• Reason: Passes automatically to surviving joint tenant

Trust property:

• Assets held in revocable living trust
• Reason: Trust administration handles these

Property passing to others:

• Property left to children or other beneficiaries
• Reason: Spousal petition only transfers property to surviving spouse

Community Property vs. Separate Property: Critical Distinction

Understanding California's community property rules is essential for determining what you can transfer via Spousal Property Petition.

Community Property

Definition: Property acquired by either spouse during marriage

Examples:

• Salary and wages earned during marriage
• House purchased during marriage (with community funds)
• Investments made during marriage
• Business started during marriage
• Pension and retirement benefits earned during marriage

Presumption: All property acquired during marriage is community property unless proven otherwise

Each spouse's share: Each spouse owns 50% of all community property

At death: Deceased spouse's 50% share passes per their will or intestate succession. Surviving spouse already owns their 50% share.

Common misconception: Many people think if property is in deceased spouse's name alone, it's their separate property. Not true if acquired during marriage with community funds.

Separate Property

Definition: Property that belongs to one spouse alone

Examples:

• Property owned before marriage
• Property acquired by gift or inheritance (even during marriage)
• Property acquired after legal separation
• Property designated as separate in prenuptial or postnuptial agreement
• Rents and profits from separate property

At death: Separate property passes entirely per deceased spouse's will or intestate succession

Why This Matters for Spousal Property Petition

Community property: You already own half. Petition confirms the other half passes to you.

Separate property: You don't own any of it unless deceased spouse left it to you.

Characterization disputes: Sometimes it's unclear whether property is community or separate. Spousal Property Petition procedure includes process for determining property character.

Spousal Property Petition Process: Step-by-Step

Let me walk you through the complete process from start to finish.

Step 1: Gather Required Information and Documents

Before filing, collect:

Death certificate:

• Certified copy (order 5-10 copies)
• Available from county health department or funeral home

Marriage or domestic partnership documentation:

• Marriage certificate
• Domestic partner registration (if applicable)

Property documentation:

• Deeds for real property
• Account statements for financial accounts
• Vehicle titles
• Business ownership documents

Will (if one exists):

• Original or copy
• Any codicils

Property character evidence:

• Documentation showing when property acquired
• Purchase documents
• Escrow statements
• Account opening documents

Debt information:

• Mortgages
• Liens
• Other debts secured by property

Step 2: Determine What Property to Include

List all property that:

• Was community property, OR
• Was deceased spouse's separate property left to you

Calculate total value: For filing fee purposes

Consider: Whether to include all property in one petition or file separate petitions

Strategy: Usually most efficient to include all property in one comprehensive petition

Step 3: Complete Form DE-221

Primary form: Spousal or Domestic Partner Property Petition (Form DE-221)

The form requires:

Item 1: Hearing information

• Leave blank; court assigns date and time

Item 2: Petitioner information

• Your name, address, phone
• Check box: surviving spouse or domestic partner
• Attorney information (if represented)

Item 3: Decedent information

• Spouse's full legal name and any aliases
• Date and place of death
• Last residence address
• Social Security number (optional but helpful)

Item 4: Surviving spouse/partner information

• Your name
• Date of marriage or domestic partner registration
• Whether still married at death (yes)

Item 5: Will information

• Check whether spouse had a will
• If yes, where will is located or filed
• Whether will leaves property to you

Item 6: Property to be transferred

• Community property: List all community property
• Separate property: List separate property passing to you
• Include property descriptions and values

For real property, include:

• Complete street address
• Assessor's parcel number (APN)
• Legal description (from deed)
• Current value

For personal property:

• Type of property (bank account, vehicle, etc.)
• Financial institution or description
• Account numbers
• Value

Item 7: Debts

• List debts secured by property
• Mortgage balances
• Liens
• Property taxes due

Item 8: Family members

• List children of deceased (names, ages, addresses)
• Indicate if any children are minors
• List other heirs if no will

Item 9: Requested orders

• Check boxes for orders you want:
  • Determine that property passes to you
  • Confirm property is community property
  • Order transfer of property
  • Other specific relief

Item 10: Declarations

• No probate proceeding is pending or granted
• You're entitled to property
• Other required statements

Sign and date: Under penalty of perjury

Step 4: Prepare Additional Required Forms

Attachment 6: If Form DE-221 doesn't have enough space to list all property, use Attachment 6 (continue on additional pages)

Confidential Supplement (if minor children): If deceased had minor children, file confidential supplement with their birth dates

Order (Form DE-226): Proposed order for judge to sign, granting your requests

Duties and Liabilities: If you'll serve as temporary guardian of children's interests

Step 5: File Petition with Court

Where to file: Superior Court in county where deceased resided

Los Angeles County: Stanley Mosk Courthouse, 111 N. Hill Street, Room 113, Los Angeles, CA 90012

What to file:

• Original petition
• Copies for service
• Death certificate (certified copy)
• Copy of will (if applicable)
• Proposed order

Filing fee:

Property Value	Filing Fee
Less than $250,000	$435
$250,000 - $499,999	$535
$500,000 - $999,999	$635
$1,000,000+	$735-$935

Court processing:

• Clerk reviews and accepts filing
• Assigns case number
• Schedules hearing (typically 4-6 weeks out)
• Returns copies with hearing date

Step 6: Provide Notice to Required Parties

California Probate Code Section 13531: Must give notice to certain parties

Who must receive notice:

• All beneficiaries under the will (if will exists)
• All heirs at law (if no will)
• Any other interested parties

How to give notice:

• Mail copy of petition
• At least 15 days before hearing
• First class mail to last known address

Proof of service:

• Have someone over 18 (not you) mail notices
• Complete Proof of Service by Mail (Form DE-120)
• File proof with court before hearing

Special rule: If all heirs and beneficiaries consent in writing, hearing may be expedited or waived

Step 7: Attend Court Hearing

When: 4-6 weeks after filing (date on notice)

Where: Probate courtroom (check notice for department)

Who should attend:

• You (surviving spouse)
• Your attorney (if represented)

What to bring:

• Photo ID
• Copy of petition
• Proposed order
• Death certificate
• Will (if applicable)

What happens at hearing:

Calendar call: Judge calls your case

Appearance: You (or attorney) state your appearance

Review: Judge reviews petition and supporting documents

Questions: Judge may ask questions:

• Relationship to deceased
• Property character (community vs. separate)
• Whether anyone objects
• Debts secured by property

Objections: Any interested party present can object (rare)

Decision: If satisfied, judge signs order granting petition

Typical hearing length: 5-10 minutes if no objections

If judge has concerns:

• May continue hearing
• May request additional information
• May set evidentiary hearing
• May deny petition (rare if properly prepared)

Step 8: Obtain Certified Copies of Order

After judge signs order:

• Order is entered by court (same day or next day)
• Order is filed in case record

Obtain certified copies:

• Request at probate filing window
• Cost: $25-30 per certified copy
• Get 5-10 copies

You'll need certified copies for:

• Each real property parcel (to record)
• Financial institutions
• Vehicle title transfers
• Any entity holding property

Step 9: Record Order with County Recorder (Real Property)

For real estate: Must record certified copy of court order with county recorder

Where: County recorder in county where property located

Process:

1. Take certified copy of order to recorder's office (or mail)
2. Pay recording fee ($50-$100 typically)
3. Order is recorded in property records
4. Recorder returns recorded copy to you

Effect: Property title now shows you as sole owner

Multiple counties: If property in multiple counties, must record in each county

Step 10: Transfer Other Assets

For financial accounts:

• Provide certified copy of order to bank/brokerage
• Request transfer to your name
• Close decedent's accounts
• Open accounts in your name

For vehicles:

• Complete DMV transfer form
• Provide certified copy of order
• Pay transfer fees
• Receive new title in your name

For business interests:

• Provide order to company
• Update corporate/LLC records
• Transfer ownership documents

Timeline: Most institutions process transfers within 1-3 weeks

Timeline: How Long Does Spousal Property Petition Take?

Total timeline: 30-60 days from filing to completion

Breakdown:

• Week 1: Gather documents and prepare petition
• Week 2: File petition with court
• Week 2-6: Notice period and waiting for hearing date
• Week 6: Court hearing and order signed
• Week 6-8: Record order and complete asset transfers

Compare to full probate:

• Full probate: 12-18 months
• Spousal Property Petition: 30-60 days
• Time saved: Over a year

Costs of Spousal Property Petition

Total typical costs: $2,500-$5,000

Breakdown:

Court filing fee: $435-$935 (based on property value)

Attorney fees: $1,500-$4,000 typically

• Preparing petition: $1,000-$2,000
• Court appearance: $500-$1,000
• Asset transfers: $500-$1,000

Recording fees: $50-$100 per real property parcel

Death certificates: $20-30 each (need 5-10 copies)

Miscellaneous: $200-$500 (copying, postage, service)

Compare to full probate:

• Full probate: $20,000-$50,000+
• Spousal Property Petition: $2,500-$5,000
• Savings: $17,500-$45,000+

Spousal Property Petition vs. Full Probate

Feature	Spousal Property Petition	Full Probate
Timeline	30-60 days	12-18 months
Cost	$2,500-$5,000	$20,000-$50,000+
Complexity	Simple	Complex
Court supervision	Minimal	Extensive
Executor appointment	Not needed	Required
Bond	Not required	Often required
Creditor publication	Usually not required	Required
Inventory/Appraisal	Not required	Required
Accounting	Not required	Required
Property transfers	Direct to spouse	Through executor
Use cases	Property to surviving spouse	All other situations

Conclusion: Spousal Property Petition is vastly preferable when available.

When You Need Full Probate Instead

Spousal Property Petition won't work if:

Property passes to others:

• Will leaves property to children or other beneficiaries
• Need full probate to distribute to multiple beneficiaries

Significant debts to resolve:

• Estate has substantial creditor claims
• Need formal creditor claim procedure
• Want protection from creditor suits

Disputes exist:

• Family members contest will
• Questions about property character
• Need court resolution of conflicts

Business operations:

• Need to continue operating business
• Require executor authority for business decisions

Complex estate:

• Many different types of assets
• Out-of-state property
• Tax issues

In these situations: Must use full probate administration

Combination approach: Sometimes use Spousal Property Petition for property passing to spouse, plus limited probate for other assets

Spousal Property Petition for Domestic Partners

California Family Code Section 297.5: Registered domestic partners have same rights as spouses

Requirements for domestic partners:

• Must be registered with California Secretary of State
• Registration must have been in effect at death

Process: Identical to spousal property petition

Form: Same Form DE-221

Rights: Equal to married couples

Important: Informal domestic partnerships don't qualify. Must have been formally registered with the state.

Common Problems and Solutions

Problem: Can't Determine If Property Is Community or Separate

Solution:

• Spousal Property Petition procedure includes process for determining property character
• Present evidence of when/how property was acquired
• Court will make determination

Problem: Some Beneficiaries Object

Solution:

• Court holds evidentiary hearing
• Present evidence supporting your position
• Court decides disputed issues

If significant disputes: May need full probate instead

Problem: Deceased Spouse Had Debts

Solution:

• List debts in petition
• Court can order how debts are handled
• May need to pay debts before transferring property
• For significant debts, may need full probate for creditor protection

Problem: Property in Multiple States

Solution:

• California petition handles California property
• May need ancillary proceedings in other states
• Each state has own procedures

Problem: Will Leaves Property to Children

Solution:

• Spousal Property Petition only for property passing to you
• Property passing to children requires full probate
• Can file both proceedings simultaneously

Frequently Asked Questions

Do I need an attorney for Spousal Property Petition?

Not legally required, but strongly recommended. The process involves legal determinations about property character, preparing legal documents, and court appearances. Most surviving spouses hire attorneys for peace of mind and to ensure proper completion.

How long do I have to file Spousal Property Petition?

No strict deadline, but sooner is better. File within a few months of death to avoid complications with accessing property and accounts.

Can I use this if my spouse died years ago?

Yes, if no probate was filed and property hasn't been transferred yet. However, earlier filing is always better.

What if we were separated but not divorced?

If still legally married at death, you can use Spousal Property Petition. Separation doesn't end marriage unless divorce is finalized.

Do creditors get notice?

Usually no. Unlike full probate, Spousal Property Petition doesn't require creditor publication. However, you remain liable for community debts.

What if property turns out to be separate property?

If will leaves separate property to you, Spousal Property Petition still works. If will leaves it to someone else, need full probate.

Can I transfer property without court order?

For some assets with small value, maybe. But for real property and significant assets, court order is necessary and provides legal protection.

Related Articles

California probate alternatives for spouses:

• How to Avoid Probate in California - Spousal Property Petition is one of 7 probate avoidance strategies.

• How Much Does Probate Cost in California? - Save $20,000-$50,000+ using Spousal Petition vs. full probate.

• How Long Does Probate Take in California? - Compare 30-60 day Spousal Petition to 12-18 month probate.

• California Small Estate Affidavit - Another simplified procedure for small estates.

• Died Without Will California - Spousal Property Petition works even without a will.

Get Help with Spousal Property Petition

While simpler than full probate, Spousal Property Petitions still involve legal complexities, property characterization issues, and court procedures. Professional guidance ensures the process goes smoothly and property is transferred correctly.

Call (818) 291-6217 to schedule a consultation at my Glendale office, or complete our probate questionnaire to get started.

As a California probate attorney serving Los Angeles County, I help surviving spouses and domestic partners efficiently transfer property using Spousal Property Petitions, prepare all required forms, handle court appearances, and complete all necessary transfers while minimizing stress during a difficult time.

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About the Author

Rozsa Gyene (State Bar No. 208356) is a California estate planning and probate attorney serving Glendale, Burbank, Pasadena, and throughout Los Angeles County. With extensive experience in spousal property transfers and probate alternatives, Rozsa helps surviving spouses navigate the legal process efficiently and compassionately.

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Disclaimer: This article provides general information about California Spousal Property Petitions and should not be construed as legal advice. Every situation is unique. California laws and procedures change regularly, and this article reflects laws in effect as of January 2025. Consult with a qualified California probate attorney about your specific circumstances.