Affidavit of Surviving Spouse or Registered Domestic Partner Succeeding to Community Property
(CA)

Summary

This template is an affidavit of surviving spouse or registered domestic partner succeeding to community property, which may generally be used by a surviving spouse or registered domestic partner to clear title to real property held as community property with the deceased spouse or partner. This template is used in California. It includes practical guidance, optional clauses, and drafting notes. This affidavit procedure is authorized by Cal Prob Code § 13540 and, subject to exceptions which may be imposed by certain County Tax Assessors or title companies, may be used in lieu of formal probate proceedings so long as a third party has not recorded (and is not expected to record) a notice claiming an interest in the property under the decedent’s will pursuant to Cal Prob Code § 13541. The author notes that the San Francisco County Tax Assessor will reassess the decedent’s 50% of the property unless the surviving spouse or partner establishes the right to inherit through a spousal property petition or full-blown probate. Cal Prob Code § 13650. In addition, a title company may refuse to issue title insurance without the security of a court order. When this affidavit procedure is utilized, at least 40 days must have passed since the decedent’s death before the affidavit may be signed. Cal Prob Code § 13540. The affidavit should then be recorded in the county where the real property is situated. A Preliminary Change of Ownership Report should be included. Depending upon the county, a Transfer Tax Affidavit (or DTT Affidavit) may also be required. Effective January 1, 2018, Cal Gov Code § 27388.1 (SB2 – Building Homes and Jobs Act) requires that documents be charged an additional $75 fee per title unless exempted by statute. A declaration of valid exemption may be placed on the face of the document or on a document cover page, which becomes part of the document, otherwise the fee will be assessed and collected. For an in-depth discussion of California estate planning and probate, see Estate Planning Strategies and Devices (CA). For other Affidavits that may be used to clear title, see Affidavit of Surviving Spouse or Registered Domestic Partner Succeeding to Community Property with Right of Survivorship (CA), Affidavit of Death of Joint Tenant (CA), and Affidavit of Death of Transferor (Revocable TOD Deed) (CA). For transfer tax templates, see Preliminary Change of Ownership Report (CA) and Transfer Tax Affidavit (CA). For more detailed information about the disposition of property when decedent leaves a surviving spouse, see California Probate Practice § 4.40.