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Spousal Set-Aside Procedure

AN ALTERNATIVE TO FULL PROBATE. Probate code § 13650 and following allows a surviving spouse or a registered domestic partner to file a shortcut proceeding to confirm transfer ownership of assets or property to the survivor. It is still necessary to file a court petition on a judicial Council form with the Orange County Superior Court or the court in which the deceased person resided.

TYPES OF ASSETS INVOLVED. For purposes of division on death or dissolution of marriage, property in California is classified as either community property, quasi-community property, or separate property. A considerable amount of research and analysis may be necessary to determine into which category a particular item of property fits. This is especially true if there have been transfers back and forth of money and accounts between the spouses, or if there are written agreement between the spouses as to how to handle property on death.

Generally speaking, community property and quasi-community property are personal property (including bank accounts) and real property acquired during the marriage as a result of earnings of either spouse. Family code §760. The concept is that of a 50-50 ownership. Thus, when one of the spouses dies, the surviving spouse needs to be able to pull out and control their surviving spouse’s 50% share. Separate property is generally property which has been acquired before the marriage or acquired during the marriage as a result of gifts or inheritance. Family code §770. Again, if the surviving spouse has separate property, he or she generally like to have the ownership transferred 100% into their name without the complication of a probate which can take a year or more.

FIRST DETERMINE IF THERE IS A WILL OR NOT. The simplest case is a situation where the deceased person leaves a will and that will leaves everything to the surviving spouse. That situation the probate code section 13650 et seq. procedure serves as a formal judicial court order that the property has passed to the surviving spouse. Thus if the estate simply consists of the family home which the Will leaves to the surviving spouse this procedure is about 75% faster than a normal probate. If the will does not leave 100% of the community property to the surviving spouse the procedure can still be used to separate out the surviving spouse’s half of the community property and to determine who is entitled to the deceased’s separate property. Also, the surviving spouse’s separate property, whether mentioned in the will or not, can be clarified by this procedure.

IF THERE IS NO WILL THEN THE ESTATE IS “INTESTATE”. If there is no will then the right of the surviving spouse to inherit is determined according to the state laws of intestate succession found a probate code §6401. It must be determined is who is entitled to the separate property of the deceased. The law says that it goes entirely to the surviving spouse if the decedent has no surviving issue. Issue is a legal term covering children grandchildren (i.e. direct descendants). On the other hand, the surviving spouse is only entitled to one half of the deceased’s separate property and the decedent leaves only one child or issue of a deceased child or leaves a parent or parents and/or brothers and sisters. There is one more category which is where the decedent leaves more than one child and that instance the surviving spouse is only entitled to one third of the separate property of the decedent. These rules are tricky and have to be applied very carefully. That is the point in part of the spousal set-aside procedure so that a judge can rule as to exactly who gets what.

PROCEDURES OF THE SPOUSAL SET-ASIDE CONFIRMATION. First, to get a proceeding started one must fill out the mandatory California judicial Council form for this procedure. The name of the form is “spousal or domestic partner property petition”. The form may be filed simply on its own or in connection with a probate procedure. Some estates may need to have both a spousal set-aside confirmation to handle routine confirmation to the surviving spouse and a formal probate to administer other state assets. An estate and trust expert attorney should be consulted to figure out what the options are. The petition will state the exact legal description of all properties and accounts involved.

The Petition must be electronically filed in the Orange County Superior Court any other court in California which requires electronic filing. This means you cannot simply fill out the papers and go down to the courthouse and file with the court. You must go through an intermediary service that is set up and licensed to file papers electronically with the court. Once the petition is filed, a hearing date is assigned and then there are formal notification procedures and publication procedures which must be complied with before the hearing is held. The court hearing is set in Orange County typically 6 to 12 weeks after the filing date on account of the court is very busy. A minimum of 15 days notice to all interested parties is required. At the court hearing the judge decides whether to grant the petition to have the property confirmed in the name of the surviving spouse and/or registered domestic partner.

The petition is typically granted unless somebody files a written objection. An example of an objection would be if a brother or a child of the deceased person files papers claiming they have some entitlement to the property in question. If objections are filed, the matter becomes contested and the case reverts over to procedures having to do with settlement conferences, a trial setting conference and ultimately a trial to decide.

INVENTORY AND APPRAISAL PROCEDURE OPTION. In formal probates, an inventory and appraisal form as described in probate code §§ 8800 et. seq. is always required to describe the money and property involved in the probate. Such form is not required in a spousal set-aside procedure. However, it may be used in situations where the services of the probate referee, who appraises the property on the inventory, would be useful. This may rise in connection with data death valulation and other income tax or estate tax matters.

APPLICATION TO DOMESTIC PARTNERSHIPS. There is a law known as the California domestic partner rights and responsibilities act contained at Family code § 297.5 et seq. That law specifically gives a registered domestic partner the same rights, protections, and benefits as given to a widow or widower. That, all of the law described above applies to the surviving domestic partner. Likewise, the surviving spouse in a same-sex marriage has the same rights as well. Marriages legally entered into in California between same-sex couples between May 15, 2008 and November 5, 2008 and after June 27, 2013 also are affected in the same manner as marriages between opposite sex couples.

CONCLUSION. The spousal set-aside procedure may be useful in simpler estates where there are not a lot of different heirs or claimants involved. Because the rules as to what is community property what is separate property and what has been changed from one to the other are complicated, it would be best to consult legal counsel before attempting to file a set-aside petition.

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