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  • Writer's pictureDuisters & Giarratano

Keeping it Simple Series: Transferring Martial Property.


Here is the real-life story. Jane and John were married in 1950. They bought a home a few years later and lived in that home for their entire marriage until sadly, John passed away in 2019. Jane and John never created an estate plan, so the home was titled in their own names, but not as joint tenants. Jane thought the entire home would automatically pass into her name after John died. It would have had it been titled differently. She wanted to put the home into her new trust. Because the title did not include "right of survivorship" language, John's half of the home did not automatically pass to Jane. Jane could not legally place the entire home into her new trust until John's half was deemed rightfully hers under the law. What was she to do? Luckily for Jane, the California Probate Code has a remedy.


A Spousal Property Petition under Probate Code 13500 allows a court to make a summary ruling (quickly without the need for a formal probate proceeding) to transfer John's half of the home to Jane if Jane can prove the home was community property (property of the marriage). Since John and Jane purchased the home together as husband and wife it was clear the home was community property. The court determined the home was rightfully Jane's as a marital asset and John's half was now in Jane's possession. She could place the entire home into her new trust.


What's the downside to this transaction, if any? Probate Code 13550 says any debts on that property made by John are now Jane's responsibility. Luckily for Jane, the home was paid off and John died debt free.


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