What Happens When There Is a Surviving Spouse in a California Probate Case?

To understand the outcome of a California probate case when there is a surviving spouse, you’ll need to first understand “Community Property.”

Simply put, California considers all property acquired by either spouse during a marriage to be community property. As such, it will be automatically transferred to the surviving spouse under  state law.

Because California is a Community Property State, all assets that are deemed to be community property are automatically the property of the surviving spouse —  even if there is a will or other document that attempts to direct the assets to someone other than the spouse.

Separate property — property that was acquired by one spouse before the marriage — can be directed by the will to anyone, including parties other than the spouse.

During the probate process, the executor or administrator — under the guidance of the court — will determine which property is community and which is separate and treat it accordingly.

A surviving spouse in California can initiate a simple procedure to transfer only the community property to the themselves without going through the regular probate process.  Separate property will still need to go through probate.