Community Property and Surviving Spouse Rights

Community property can play a major role in the rights of a California surviving spouse.  It is critical that if property is community property, even if it is held only in the name of one spouse, it be property identified as community property very soon after a spouse dies, in order to preserve the legal rights of the surviving spouse.

(Community property only applies to married couples, so this discussion does not apply to children or grandchildren.)

When a spouse dies, and he held property in his own name even though that property was actually community property under California law, the surviving spouse MUST assert their right to the property.  The surviving spouse must affirmatively act to DO SOMETHING or risk losing a potentially large portion of the estate.

There are two ways the surviving spouse may assert legal rights to community property:

1)  file SPOUSAL PROPERTY PETITION; or

2) at the INVENTORY & APPRAISAL phase of probate, identify the property as community property

A surviving spouse who doesn’t take action to preserve her rights risks only receiving a fraction of the property: a third or half depending on whether she has children.  By taking action, she can preserve her rights and receive the full 100% that she is entitled to.

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