Does a Surviving Spouse Need Probate?

If your spouse has recently passed away, you may be wondering if you need to go through probate in order to inherit your deceased spouse’s property. The answer to this question depends on how your spouse’s property was titled and the value of your spouse’s solely-owned assets.

The first question is whether your spouse’s assets are subject to probate administration in the first place. Some property is not required to go through the probate process based on how it is titled.

Common examples of non-probate assets include:

  1. Property held in trust.
  2. Jointly-owned assets with a right of survivorship, such as bank accounts and real estate. 
  3. Payable-on-death (“POD”) or transferable-on-death (“TOD”) accounts with designated beneficiaries.
  4. Proceeds from life insurance policies with designated beneficiaries.

Additionally, the California Probate Code establishes a dollar threshold for when probate is required. If your spouse passed away on or after April 1, 2022, and the value of their probate assets exceeds $184,500, then formal probate will be required. For individuals who died before April 1, 2022, the limit is $166,250.

If you have questions, schedule a free consultation at today.

Does a Surviving Spouse Inherit Everything?

In California, a surviving spouse does not automatically inherit everything from their deceased partner. However, it is certainly possible that a surviving spouse will inherit everything, and in many cases, they do.  

Your spouse’s non-probate assets will be passed as follows:

  • Trust property will be distributed to named beneficiaries according to the terms of the trust instrument. 
  • Jointly-owned assets will automatically be inherited by the surviving joint owners, provided a right of survivorship exists. 
  • Funds from COD and COD accounts and life insurance proceeds will be distributed to the designated beneficiary, provided one has been named. 

However, keep in mind that if you are not the beneficiary or joint owner of non-probate assets that your spouse obtained during your marriage, California’s community property laws may entitle you to inherit despite the beneficiary designation and/or the co-owner’s right to survivorship. 

When it comes to probate assets, what you will inherit depends on whether your spouse had a will or trust, whether you and your spouse signed a pre-nuptial or post-nuptial agreement, and whether the property was acquired during or before your marriage.

What Is a Surviving Spouse Entitled To?

A surviving spouse is at least entitled to receive one-half of the marriage’s “community property.” However, they often receive considerably more based on the terms of their spouse’s will or state intestacy law. 

Because California is a community property state, the law presumes that all the assets you or your spouse acquire during your marriage are community property, no matter how they are titled. Absent a pre-nuptial or post-nuptial agreement that states otherwise, when one spouse passes away, the surviving spouse is entitled to at least one-half of the community property, since each spouse owns one-half of all property acquired during the marriage, regardless of which spouse purchased it. 

If your spouse leaves behind a valid will, their probate assets will be distributed according to the wishes outlined in the document, subject to the community property guidelines discussed above. If there is no will or the will is considered invalid, the state’s intestate succession laws will determine how the assets are divided. 

Under California’s intestate succession laws, which are found in California Probate Code §§6400-6455, a surviving spouse will inherit everything if their deceased spouse has no surviving children, parents, siblings, nieces, or nephews. 

However, if any of these family members are still alive, the surviving spouse will receive all community property and a portion of the deceased spouse’s separate property. The other heirs will also inherit a share of the deceased spouse’s non-community assets.

What Happens If You Don’t Probate a Will?

If your spouse dies and you don’t probate their will, it can create serious issues.

When you fail to probate a will, the deceased person’s probate assets cannot be legally transferred to their beneficiaries. Instead, any property that is solely titled to your spouse will remain in their name and not yours, including vehicles and real estate. 

This means you won’t be able to sell, mortgage, or rent your spouse’s property. You also won’t be able to renew the registration for any vehicles that are titled to your spouse, which can lead to legal trouble if you are driving one of these vehicles.

If your spouse has passed away and you are wondering if probate is necessary for you to inherit their property, the best thing to do is consult a probate litigation lawyer. A qualified attorney can help you determine if probate is necessary in your case and offer advice on how to proceed in the most prudent manner possible. 

Have questions? We’re happy to discuss.
Call (424) 320-9444 or email [email protected]

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About RMO, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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