The California spousal property petition, filed on Judicial Council Form DE-221, lets a surviving spouse or registered domestic partner transfer a deceased partner’s property through a single court hearing instead of a full probate. You file the petition in the superior court for the county where the decedent lived, give at least 15 days’ notice to every heir and devisee, and leave the hearing with a signed order (Form DE-226) that you use to retitle real estate, bank accounts, and vehicles.
Whether This Petition Fits Your Situation
Only a surviving spouse or surviving registered domestic partner can file DE-221. Probate Code Section 13650 authorizes the petition for surviving spouses, and Family Code Section 297.5 extends identical rights to registered domestic partners.1California Legislative Information. California Probate Code 13650 – Determination or Confirmation of Property Passing or Belonging to Surviving Spouse A personal representative, guardian, or conservator acting for the survivor can also file.
The petition does two different jobs, and most filers ask for both at the same time. One is a determination that the decedent’s property passes to you — the decedent’s share of community property plus any separate property left to you by will or intestate succession. The other is a confirmation that your own half of community or quasi-community property already belongs to you.2Judicial Council of California. DE-221 Spousal or Domestic Partner Property Petition That second piece matters for real estate: without a court order on file, title companies and county recorders often treat the survivor’s own half as clouded.
Probate Code Section 13500 defines property passing to the surviving spouse as whatever the decedent left you by will, or whatever passes to you under intestate succession when there is no will.3California Legislative Information. California Probate Code 13500 In practice that covers:
- The decedent’s one-half interest in community property acquired during the marriage or partnership while living in California.
- Quasi-community property: assets acquired in another state that would have been community property if acquired in California.
- Separate property the decedent owned before marriage or received by gift or inheritance, but only if the will or intestacy rules direct it to you.
The petition is most useful when assets are titled solely in the decedent’s name. It is not needed for property held in joint tenancy, inside a living trust, or with a payable-on-death beneficiary, because those pass automatically. It also will not help if the decedent’s share of an asset was left to someone else, or if someone is contesting whether a valid marriage or registered partnership existed. For a small estate made up only of personal property, a small estate affidavit under Probate Code Section 13100 may be simpler, but that affidavit cannot transfer real estate.4California Courts | Self Help Guide. Check If You Can Use a Simple Process to Transfer Property
Filing a spousal property petition does not block a separate probate from being opened for other assets. If the decedent also left separate property to a child, a probate administration can run alongside your petition for the spousal share.5California Legislative Information. California Probate Code PROB 13654
Filling Out Form DE-221
Download the current version of DE-221 from the California Courts website or pick up a copy at your local superior court clerk’s office.6California Courts | Self Help Guide. Spousal or Domestic Partner Property Petition (Probate – Decedents Estates) (DE-221) The caption, decedent details, and type-of-request check boxes are straightforward. Three sections do the real work.
Property Descriptions
This is the section that decides whether your petition succeeds or gets kicked back. Probate Code Section 13651 requires a description of each asset you are claiming.7California Legislative Information. California Probate Code PROB 13651 For real estate, use the full legal description from the most recent deed, not the street address. The county recorder will reject an order that contains only a street address. For bank and brokerage accounts, include the institution name and account number. For vehicles, include the VIN. Attach these descriptions as separate pages labeled “Attachment 5a” (property passing to you) and “Attachment 7a” (property you are confirming as already yours).
Characterize Each Asset
You also have to say whether each asset is community, quasi-community, or separate property. Get this right. It is the most common point of dispute. If another heir believes an asset you listed as community was actually the decedent’s separate property, they can object and force the court to decide the question at the hearing.
Heirs, Devisees, and Executors
The form asks for the name, age, address, and relationship to the decedent of every known heir and devisee, plus the names and addresses of anyone named as executor in the will.7California Legislative Information. California Probate Code PROB 13651 These are the people who will be served with notice. Leaving someone off does not help you. It gives them grounds to challenge the order later.
What to Attach
The petition itself is just the starting point. You will usually need to attach:
- A copy of the will, if there is one, showing which assets were left to you. Without a will, you rely on California’s intestate succession rules and should explain the family relationships that establish your right to the property.
- Legal descriptions of any real property, pulled from recorded deeds rather than tax bills.
- A certified copy of the death certificate, which most courts expect.
- A list of all known business creditors and the amounts owed, if any property passing to you includes an unincorporated business the decedent was operating at death. Probate Code Section 13658 requires this.8Justia. California Probate Code 13650-13660 – Determination or Confirmation of Property Passing or Belonging to Surviving Spouse
An inventory and appraisal is generally not required. Probate Code Section 13659 makes that explicit, except when the business-interest rule in Section 13658 applies.8Justia. California Probate Code 13650-13660 – Determination or Confirmation of Property Passing or Belonging to Surviving Spouse You may file one voluntarily within three months if you want a formal valuation on record, but the court will not require it for a standard petition.
Where to File and What It Costs
File the completed petition in the superior court of the county where the decedent was domiciled at death. If a probate proceeding is already pending, file the spousal petition in that same case, and you will not owe an additional filing fee.9California Legislative Information. California Probate Code 13652
If no probate case is open, the filing fee is $435.10California Courts | Self Help Guide. If You Need Formal Probate Courts in Riverside, San Bernardino, and San Francisco counties add a local courthouse construction surcharge that pushes the total slightly higher.11Superior Court of California. Statewide Civil Fee Schedule If you cannot afford the fee, apply for a waiver using Form FW-001.12California Courts | Self Help Guide. Ask for a Fee Waiver Filing fees can also be reimbursed from estate funds.
Serving Notice of the Hearing
After the clerk assigns a hearing date, you have to notify every interested party. Probate Code Section 13655 requires notice to all heirs, all devisees named in the will, anyone named as executor, and any personal representative who has already been appointed.13California Legislative Information. California Probate Code PROB 13655 – Notice of Hearing The notice must include a copy of the petition itself.
Delivery has to happen at least 15 days before the hearing, following the method in Probate Code Section 1220, generally personal delivery or mailing to the person’s residence or business address.14California Legislative Information. California Probate Code PROB 1220 File a proof of service with the court before the hearing. If the court finds that you skipped someone or served late, the hearing will be continued.
At the Hearing
A judge or probate commissioner reviews your petition, your attachments, and any objections. The most common dispute is characterization: an heir claims an asset you listed as community property was actually the decedent’s separate property. If characterization is contested, the court has authority to decide how the property should be divided.
Under Probate Code Section 13656, the court can:15California Legislative Information. California Probate Code PROB 13656
- Issue an order describing the property, determining that it passes to you, and declaring that no administration is necessary.
- Split its order so that part of the property passes to you while the rest goes through probate administration.
- Issue a separate confirmation order for your own half of community or quasi-community property, if you asked for that.
When the judge approves the petition, the court signs Form DE-226, the Spousal or Domestic Partner Property Order.16California Courts | Self Help Guide. Spousal or Domestic Partner Property Order (Probate – Decedents Estates) (DE-226) That is the document you use to retitle everything.
After the Court Signs the Order
The signed DE-226 is your key to transferring ownership, but you still have legwork ahead. Request at least two or three certified copies from the clerk. Financial institutions often want their own certified copy rather than a photocopy, and the county recorder will want one for real estate.
For real estate, record a certified copy of the order with the county recorder in the county where the property sits. You will also need to file a Preliminary Change of Ownership Report, which the county assessor uses to decide whether a reassessment is triggered. For bank and brokerage accounts, bring a certified copy to the institution and most will retitle the account or release funds once they verify the order. For vehicles, take the order to the DMV with the title transfer paperwork.
Debts You Take On With the Property
Receiving property through this petition does not let you walk away from the decedent’s debts. Probate Code Section 13550 makes the surviving spouse personally liable for the deceased spouse’s debts, up to a capped amount.17California Legislative Information. California Probate Code 13550
Section 13551 sets the ceiling at the combined fair market value (as of the date of death, minus liens and encumbrances) of:18California Legislative Information. California Probate Code 13551
- Your half of community and quasi-community property that is not exempt from creditor claims and is not being administered in the estate.
- The decedent’s half of community and quasi-community property that passes to you without administration.
- The decedent’s separate property that passes to you without administration.
Your liability is limited to the value of what you actually receive. You do not owe the decedent’s creditors anything out of your own pre-existing assets. But creditors can reach what you obtained through the petition, so run the numbers before filing. If the debts exceed the value of the estate, a full probate administration with court-supervised creditor claims may actually protect you better.
The Community Property Tax Basis Benefit
One consequence of using this petition that many surviving spouses miss is a federal tax benefit. Under Internal Revenue Code Section 1014(b)(6), when a spouse dies, both halves of community property get a new tax basis equal to the fair market value at the date of death, not just the decedent’s half.19Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent This full step-up applies to all community property, including the survivor’s own half.
It matters most when you plan to sell appreciated real estate. If you and your spouse bought a home for $200,000 and it was worth $900,000 at the date of death, your entire basis resets to $900,000, not just the decedent’s share. Sell soon after for $900,000 and you owe no capital gains tax on the appreciation. The spousal property petition, by establishing the community character of the property through a court order, creates a clean record to support that basis adjustment if the IRS ever questions it. The full step-up applies only to community property. Separate property that passes to the surviving spouse gets a step-up only on the decedent’s interest.