The surviving spouse has important estate administration duties at the death of the first spouse to die (i.e., “the deceased spouse”).  These sometimes go neglected until the surviving spouse dies.  The surviving spouse needs to examine how the deceased spouse’s assets are titled. 

Real properties may be held by a husband and wife as tenants in common, as joint tenancy assets, as community property, as community property with right of survivorship, or as trustee(s) if the asset is held in trust.   Assets held as tenants in common, or by the deceased spouse in his or her name alone, are subject to the deceased spouse’s will or, if no will exists, the laws of intestacy.  

Furthermore, during life California law generally presumes that all assets acquired by married people while married and domiciled in California are community property (section 760 Family Code).  This general presumption is rebuttable by a preponderance of the evidence.  The presumption applies during the couple’s lifetime and, specifically in divorce or creditor proceedings involving either spouse, but, importantly, does not apply at death at which time the form of title controls (In re Brace (2020) 9 C5th 903).   

If the deceased spouse died without a will then the deceased spouse’s separate property goes by intestacy to the deceased spouse’s surviving spouse and children, if relevant.  Any community property goes entirely to the surviving spouse by intestacy.

Assets that belong to the deceased spouse individually and require a court order for a surviving spouse to inherit title are still not required to pass through probate.  That is true whether or not such assets pass under a will or by intestacy.  A so-called spousal property petition can be used to retitle assets from the deceased spouse into the surviving spouse’s name alone.

Other assets may transfer either by right of survivorship or by trust administration.  Assets held in trust require private trust administration.  Trust administration, however, is not self-executing and has similarities with a court probate administration.  Unfortunately, the administration of a joint husband and wife trust often goes ignored by the surviving spouse.

Some married couples have joint trusts that requires the deceased spouse’s share of the trust assets to be transferred into an irrevocable by-pass trust (i.e., a so-called “A-B” Trust) — where the deceased spouse’s assets are held and administered until the death of the surviving spouse – then failing to divide the joint trust at the deceased spouse’s death means bigger problems later on when the surviving spouse dies. 

Assets where the surviving spouse while alive could have filed a spousal property petition to remove the deceased spouse from title will require a probate of the surviving spouse’s estate.  Only a personal representative of the surviving spouse’s probate can file a spousal property petition to transfer assets from the deceased spouse to the surviving spouse’s estate. 

After the surviving spouse has settled the deceased spouse’s estate, the surviving spouse can then more completely update his or her own estate planning.  This is work that usually cannot fully be accomplished until the deceased spouse’s name is removed from title to assets.

The foregoing discussion is not legal advice.  Consult an attorney if facing these legal issues.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”