California law grants a surviving spouse special rights and obligations concerning the probate estate and personal debts of a deceased spouse.

These are governed by community property laws. The same rules apply to California registered domestic partners.

Community and quasi community property is divided equally at death, and separate property belongs to the owning spouse.

Assets acquired while married and living together are either community or quasi community property.

Any property acquired before marriage, or by gift or inheritance while married, is the separate property of that spouse.

Accordingly, a surviving spouse owns one-half of all the couple's community property and quasi community property. The decedent may thus bequeath his or her one-half of the community property, and all his or her separate property, as he or she pleases.

If the deceased spouse attempts to give all of a community property asset to someone other than the surviving spouse, the surviving spouse must elect between inheriting under the deceased spouse's will or trust and receive those gifts, or else enforce her community property rights.

When a deceased spouse dies intestate (i.e., without a will) owning an interest in community property assets not held in joint tenancy or trust, the surviving spouse owns the entire community property estate.

After 40 days, the surviving spouse has complete control, unless, in the case of real property, someone has filed a notice claiming an inheritance under the deceased spouse's will.

Probate is never required to transfer property from the deceased to the surviving spouse. The surviving spouse can use either the affidavit procedure for small estates or file a spousal property petition. Small estates are those appraised at under $150,000.

Affidavits may not be used for real property appraised over $50,000, even in small estates.

Sometimes, however, a surviving spouse will probate the entire community property and the decedent's separate property. This is because, generally, the surviving spouse is personally liable for all the debts of the deceased spouse, up the value of any community and separate property received without probate.

Through probate the surviving spouse can avoid personal liability and have the debts allocated. If any such assets are held in a trust, the trustee can transfer them to the executor. Community property in joint tenancy would presumably need to be transferred too.

In a probate, the surviving spouse can petition to have debts allocated between the spouses. They are typically allocated as if a divorce had occurred at date of death.

Generally, the community property answers for all the debts incurred during marriage. There are exceptions.

The deceased spouse's funeral expenses and expenses of last illness are allocated to the decedent's estate only, and not to the surviving spouse's one-half interest in the community property or separate property.

Debts from before marriage are allocable to the debtor spouse's separate property, and, any excess is allocated to the debtor spouse's one-half interest in the community property estate.

Upon petition in a probate the surviving spouse may receive a family maintenance allowance as necessary to maintain the surviving spouse and dependent children in their accustomed manner of living.

Upon petition, the court, at its discretion, may also grant a family homestead. A family homestead allows the surviving spouse, and any minor children, to live in a residence for a period of time as the court finds proper; sometimes the surviving spouse's remaining lifetime.

Interestingly, the foregoing spousal protections apply even if the deceased spouse's probate estate is all separate property, and even if it is all bequeathed to someone other than the surviving spouse.

Naturally in that case the court would unlikely grant the surviving spouse a lifetime homestead as the court considers the competing interests of the decedent's heirs and beneficiaries and the decedent's own testamentary bequests.

How the surviving spouse should best proceed is something to discuss with a qualified attorney based on the facts and circumstances.

Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .