Spousal Property Petition in California: Skipping Straight to a Sale
When a husband, wife or registered domestic partner dies and the house was community property or was left to the survivor, California doesn’t always require a full probate before the survivor can sell. A spousal or domestic partner property petition, filed under Probate Code section 13650, asks the court for one order confirming that the property belongs to the surviving spouse. Once that order is recorded, the survivor owns the house outright and can sell it like any other owner.
Below is how the petition works, who qualifies, what it costs compared with probate, how long it takes, and what selling looks like afterward. Whether your house qualifies depends on the deed and the will, so have a probate attorney look at both before you file.
What the petition does
The petition (Judicial Council form DE-221) can ask the court for two things. First, it can confirm that the surviving spouse already owns their own half of the community property. Second, it can determine that the deceased spouse’s share passes to the survivor without administration. The court’s decision comes out as a Spousal or Domestic Partner Property Order (form DE-226), which is the document title companies want to see.
Registered domestic partners have the same rights here as married spouses.
Community vs. separate property
Everything turns on how the house is characterized and who it was left to.
- Community property is generally anything acquired during the marriage with marital earnings, regardless of whose name is on title. If the deceased spouse’s half goes to the survivor, by will or by intestate succession, the petition is available. Without a will, the deceased spouse’s half of community property goes to the survivor automatically under California law.
- Quasi-community property is property bought while living in another state that would have been community property if bought in California. It’s treated the same way.
- Separate property is property owned before marriage, or received by gift or inheritance. It only qualifies if it actually passes to the surviving spouse under the will or intestate succession. Without a will, the survivor often shares separate property with children or other relatives, and that share won’t go through this petition.
If the will leaves the deceased spouse’s half of the house to the children, the petition can still confirm the survivor’s own half, but the other half needs probate or another procedure. Disagreements about whether the house is community or separate are common, especially after refinances or when one spouse owned it before the marriage. Contested characterization slows everything down.
When you may not need a petition at all
Check the deed before filing anything:
- Community property with right of survivorship or joint tenancy: the survivor usually just records an affidavit of death of spouse or joint tenant with a certified death certificate.
- House held in a living trust: the successor trustee handles it under the trust. See our guide on selling a house as a successor trustee.
- Plain community property: Probate Code section 13540 gives the surviving spouse power to sell community real property after 40 days from the death, supported by a recorded affidavit, unless someone has recorded a notice claiming an interest. In practice, many title insurers still want a court order, especially if the vesting is unclear or a will leaves property elsewhere. Ask the title company early which path they’ll accept.
The process and timeline
- Gather documents: the death certificate, the deed, the will (if any), and anything showing when and how the house was acquired.
- File the DE-221 petition in the superior court of the county where the deceased spouse lived, with a legal description of the property.
- Give notice. The court sets a hearing, and notice must go to heirs and beneficiaries at least 15 days before it.
- Attend the hearing (often brief if no one objects). Many courts post tentative rulings or probate notes ahead of time listing anything missing.
- Record the order. Record a certified copy of the DE-226 order with the county recorder. Title is now in the survivor’s name.
Uncontested petitions commonly take about two to four months from filing to recorded order, though busy courts can push hearings out further. Compare that with how long full probate usually takes in California, which commonly runs nine to eighteen months or more.
What it costs compared with probate
The court filing fee for a spousal property petition is $435, the same as a first probate petition, and fee waivers are available for people who qualify. The real savings are in attorney fees. In a full probate, the attorney and the executor are each entitled to a statutory fee set by Probate Code section 10810, calculated on the gross value of the estate, not the equity. For a spousal petition, the attorney’s fee is whatever you agree to with the attorney, often a flat fee, with no statutory percentage.
One trade-off: there’s no formal creditor claim process. A surviving spouse who takes property this way can be personally responsible for the deceased spouse’s debts, up to the value of what they received. If there are significant debts, talk with an attorney about whether probate is actually the safer route. Our breakdown of probate costs in California shows the full comparison.
A worked example
Say a couple bought a house in Long Beach in 2001, titled “husband and wife as community property,” with no survivorship language. The husband dies with a will leaving everything to his wife. The house is worth about $850,000 and is paid off.
| Full probate | Spousal property petition | |
|---|---|---|
| Filing fee | $435 | $435 |
| Attorney fee | $20,000 statutory (on $850,000) | Agreed with attorney, no statutory percentage |
| Executor fee | Up to $20,000 statutory | None |
| Creditor claim period | At least four months | None |
| Typical time to clear title | 9 to 18+ months | Often 2 to 4 months |
| Court approval of the sale | Depends on authority granted | Not needed once order is recorded |
The statutory figure comes from 4% of the first $100,000, 3% of the next $100,000, and 2% of the next $800,000. An executor who is also the surviving spouse can waive their fee, but the attorney’s statutory fee still applies in probate.
There’s also a tax point worth knowing. When one spouse dies, both halves of community property generally get a new tax basis equal to market value at the date of death. If the widow sells for close to $850,000 soon after, there’s usually little or no capital gain to report, even though the couple paid far less in 2001. Our article on stepped-up basis for inherited property explains this in more detail; confirm your numbers with a CPA.
Selling after the order
Once the order is recorded, the surviving spouse sells as the sole owner. There’s no court confirmation hearing, no overbid process and no waiting on a judge, unlike some sales in probate. The title company will want the recorded order and a death certificate. A transfer between spouses at death is generally excluded from property tax reassessment, which matters if the survivor decides to keep the house instead.
Many survivors sign a listing agreement or purchase contract while the petition is pending so things are ready when the order comes through. That’s fine as long as the buyer understands closing depends on the order.
Common questions
Can I file a spousal property petition if a probate case is already open?
Yes. The petition can be filed within an existing probate case, which is common when there are other assets that do need probate.
Is there a value limit, like the small estate procedure?
No. A spousal property petition can be used regardless of the home’s value. The small estate procedures are a separate option with their own limits.
Do I need a lawyer?
You can file yourself, but characterization questions and title requirements trip people up. A short consultation with a probate attorney usually pays for itself.
Ready to sell once title clears?
If you’re a surviving spouse or partner and the house is more than you want to manage, we can make an offer while the petition is pending and close after the order is recorded. We either buy directly or bring a vetted cash buyer, and we buy as-is, so there’s no need to clean out or repair the house first. Call (424) 435-2326 or request a no-obligation offer online.