Property Passing to a Surviving Spouse — California Probate Code §§ 13500–13660

When a spouse dies without a will leaving property that passes to the surviving spouse under § 6401, or dies with a will that devises all or part of the property to the surviving spouse, the property passes to the survivor and "no administration is necessary" (§ 13500). That rule is subject to two later chapters of the same part: one governs dealing with real property after the death (§§ 13540–13545), the other the survivor's personal liability for the deceased spouse's debts (§§ 13550–13554). The statute treats the decedent's one-half of the community and quasi-community property and the decedent's separate property as separate categories, and this page keeps them apart (§§ 13502(a), 13551).

The survivor does not have to file anything to benefit from § 13500, but a spousal property petition lets the superior court issue an order that no administration is necessary and, if asked, confirm the survivor's own half of the community and quasi-community property (§ 13650(a)). Related questions are covered on our pages on inheriting a house without probate and who inherits without a will.

Section 13500 applies in two situations: the spouse dies intestate leaving property that passes to the survivor under § 6401, or dies testate and by will devises all or a part of the property to the survivor. In either case the property passes to the survivor "subject to the provisions of Chapter 2 (commencing with Section 13540) and Chapter 3 (commencing with Section 13550)" and no administration is necessary (§ 13500). Part of the estate can therefore pass this way while the rest is administered.

Three kinds of property are still subject to administration under the Probate Code: property passing to someone other than the surviving spouse under the will or by intestacy; property disposed of in trust under the will; and property in which the will limits the survivor to a "qualified ownership" (§ 13501(a)–(c)). A devise to the survivor that is conditioned on surviving the decedent by a specified period is not a qualified ownership once that period has expired (§ 13501(c)). Section 13501 is itself subject to exceptions in Chapter 6 of Division 6 and in Part 1 of the same division (§ 13501).

Community property held in a revocable trust described in Family Code § 761 is governed by the trust's own provisions for disposition at death, if any (§ 13504). The rules apply whether the deceased spouse died before, on, or after July 1, 1987 (§ 13505).

The survivor (or the survivor's personal representative, guardian of the estate, or conservator of the estate) may elect to have all or a portion of certain property administered under the Probate Code. The property that can be brought in is: the decedent's one-half of the community property under § 100, the decedent's one-half of the quasi-community property under § 101, and the decedent's separate property; and the survivor's own one-half of the community and quasi-community property (§ 13502(a)(1), (2)).

The election is made by a writing "specifically evidencing the election" filed in the administration proceedings within four months after the issuance of letters, or within any further time the court allows on a showing of good cause, and before entry of an order under § 13656 (§ 13502(b)). A separate election lets the survivor transfer all or part of the survivor's own half of the community and quasi-community property to the trustee under the deceased spouse's will, or of an existing trust the will identifies, to be administered and distributed by the trustee; it must be filed in the estate proceedings before the order for final distribution (§ 13503).

On a petition by the decedent's personal representative and a showing of good cause, the court may also order that a pecuniary devise to the survivor, or a fractional interest passing to the survivor in property where the remaining fraction is subject to administration, be administered, except to the extent it has already passed by inheritance as determined by an order under Chapter 5 (§ 13502.5(a)); notice goes to the persons in § 1220 and to the survivor (§ 13502.5(b)). Electing to administer also affects the debt rules below: the survivor is not liable under Chapter 3 if all the property described in § 13502(a)(1) and (2) is administered (§ 13553).

Except as provided in § 13541, after 40 days from the death of a spouse, the survivor (or the survivor's personal representative, guardian of the estate, or conservator) has full power to sell, convey, lease, mortgage, or otherwise deal with and dispose of the community or quasi-community real property. The title of a grantee, purchaser, encumbrancer or lessee is then free of the rights of the deceased spouse's estate, devisees and creditors, to the same extent as if the property had been the survivor's separate property (§ 13540(a)). The survivor may record an affidavit of the facts establishing the right to make the disposition, before or together with the instrument (§ 13540(b)).

That protection does not apply to a disposition made after a qualifying notice is recorded with the county recorder where the real property is located (§ 13541(a)). The notice must describe the property in which an interest is claimed, state that an interest is claimed by a named person under the will of the deceased spouse, and name the record owner or owners (§ 13541(b)); it must also be endorsed with indexing instructions (§ 13541(c)). A person may not record such a notice to slander title; if the court so finds, it must award costs, reasonable attorney's fees and the damages caused by the recording (§ 13541(d)).

Section 13540 does not limit the survivor's debt liability (§ 13540(c)). For community or quasi-community securities registered in the survivor's name alone, § 13545(a) gives the survivor the same kind of full power to sell, assign or pledge after the death, with transferees taking free of the deceased spouse's estate, devisees and creditors "to the same extent as if the deceased spouse had not died"; again, debt liability is preserved (§ 13545(b)). A transaction made before July 1, 1987 that was governed by former § 649.2 stays governed by it (§ 13542).

Subject to listed exceptions, the surviving spouse is personally liable for the deceased spouse's debts chargeable against the property described in § 13551, to the extent that section provides (§ 13550). The liability may not exceed the fair market value at the date of death, less liens and encumbrances, of the total of: the survivor's own half of the community and quasi-community property that is not exempt from enforcement of a money judgment and is not administered in the estate; the decedent's half of the community and quasi-community property that passes to the survivor without administration; and the decedent's separate property that passes to the survivor without administration (§ 13551(a)–(c)).

If administration proceedings have begun and the time for filing claims has started, an action on the survivor's liability is barred to the same extent as claims under Part 4 of Division 7 — except against creditors who served a complaint on the survivor before the claim period expired, who hold the survivor's written acknowledgment of the liability, or who filed a timely claim in the estate (§ 13552(a)–(c)). Otherwise a debt may be enforced against the survivor as it could have been against the deceased spouse; the survivor may assert any defense, cross-complaint or setoff the deceased spouse could have asserted; and Code of Civil Procedure § 366.2 applies (§ 13554(a)–(c)).

A separate chapter covers the decedent's half of the community and quasi-community property (§ 13560). If the survivor has possession or control of it at the death, the survivor is personally liable, to the extent of § 13563, to any person with a superior right by testate succession; that action is barred three years after the death and the period is not tolled for any reason (§ 13561). If administration of the estate is commenced, the survivor must restore the property (with net income) or, if it was disposed of, its fair market value with interest at 7 percent per annum from the date of disposition (§ 13562(a)); a survivor who made a significant improvement in good faith faces the alternative measures in § 13562(b). Only the personal representative may bring that action, and it is also barred three years after the death (§ 13562(d), (e)). The aggregate liability under § 13561 is capped (§ 13563(b)); the remedies are in addition to any for fraud or intentional wrongdoing (§ 13564); and a court that finds the survivor acted reasonably and in good faith may excuse interest in whole or in part (§ 13565).

A surviving spouse, or the survivor's personal representative, guardian of the estate or conservator of the estate, may petition the superior court of the county in which the deceased spouse's estate may be administered for an order that administration of all or part of the estate is not necessary because it is property passing to the surviving spouse. The petition may also ask the court to confirm the survivor's ownership of property belonging to the survivor under § 100 or 101 (§ 13650(a)). It does not apply to property the petitioner has elected to have administered under § 13502 (§ 13650(b)), and a guardian or conservator may file without approval of the guardianship or conservatorship court (§ 13650(c)).

The petition must allege that administration is unnecessary because the property passes to the survivor and set out: the facts that fix the county (if no administration is pending); a description of the property, including the trade or business name of any unincorporated business the deceased spouse was operating or managing at death; the facts supporting the allegation; a description of any community or quasi-community interest the petitioner asks the court to confirm; and the name, age, address and relation of each heir and devisee, plus known executors and personal representatives — together with disclosure of any written agreement for a non pro rata division of the community or quasi-community assets, or a statement that none exists (§ 13651(a)(1)–(5)). A copy of the will is attached if the claim rests on it, and a copy of any such agreement if the description rests on it (§ 13651(b), (c)).

If administration proceedings are pending, the petition is filed in them without an additional fee (§ 13652). If none is pending, it may, but need not, be filed with a petition for probate of the will or for administration (§ 13653). Filing it does not stop the court from admitting the will to probate or appointing a personal representative on anyone's petition (§ 13654).

Notice of the hearing must be given as provided in § 1220 to each person listed there, each person named as executor in any will of the deceased spouse, and all devisees and known heirs — and, if the petitioner is a trustee of a trust that is a devisee, the persons interested in the trust (§ 13655(a)). It must also go to the Attorney General in Sacramento if the claim rests on a will that involves or may involve a charitable testamentary trust (other than one with a designated resident trustee) or a charitable devise with no identified devisee (§ 13655(b)). Where a petition is filed together with a petition for probate or administration, the § 13655(a) notice requirement does not apply by its terms.

If the court finds all of the estate is property passing to the survivor, it issues an order describing the property, determining that it passes to the survivor, and determining that no administration is necessary (§ 13656(a)). If only part passes, the order separately describes the property that does not pass (which remains subject to administration) and the property that does (§ 13656(b)). If the petition described the survivor's own community or quasi-community interest and the court finds it belongs to the survivor, the order confirms that ownership (§ 13656(c)). The court may issue further orders to deliver the property or its proceeds to the survivor (§ 13656(a), (b)).

Once final, an order that property passes to the survivor, or one confirming the survivor's own interest, is conclusive on all persons, whether or not they are in being (§ 13657). If the property includes an unincorporated business the deceased spouse operated or managed, the court must require the survivor to file a list of known business creditors and amounts owed, and may order an undertaking and an inventory and appraisal (§ 13658). Otherwise no inventory and appraisal is required, but the petitioner may file one within three months after filing the petition, or within further time the court allows for reasonable cause (§ 13659). Attorney's fees for the petition are set by private agreement and are not subject to court approval; a dispute over reasonableness or over the agreement's meaning may be taken to the court by petition in the same proceeding (§ 13660).

This page is general information, not legal advice. Read the enacted text linked below, and talk to a probate lawyer about a specific estate.