Community Property & Surviving Spouse

California is a “Community Property State” which means that money earned or property acquired during the marriage (that was not a gift or inherited by one particular spouse) is considered to be equally “owned” by each spouse. However, community property can be difficult to classify as many couples commingle their money or purchase property with monies separately received as a gift or inheritance.

Will

A Will defines how the decedent wants their estate to be divided. Should the decedent not want their spouse to inherit all of the estate, they will specify in their Will exactly who (or what entity, in some cases) they want their property or money to go to. Often times the Will names a charity or a particular person other than their spouse to inherit all or part of the estate.

Small Estate Affidavit

If the decedent’s estate is valued at less than $150,000 the surviving spouse can prepare a Small Estate Affidavit, attach a certified copy of the Death Certificate and present the Affidavit to the “holder” of the decedent’s property. The Affidavit must be in compliance with California Probate Code Sections 13100-13106 and the surviving spouse must attest that each of the items in the Affidavit are true and correct. For example, if the decedent died without a will but had a bank account with a balance of $10,000 and the account was only in their name, the surviving spouse will take the Affidavit to the bank so the bank can release the funds to him or her. So long as the Probate Code requirements are met and Probate not necessary, the funds will be released to the surviving spouse with the Small Estate Affidavit.

Personal Representative

Should the estate be valued at an amount above $150,000, a formal probate proceeding will need to be opened. The surviving spouse often becomes the Personal Representative of the Estate and will manage all of the decedent’s after death affairs.