California Community Property Probate: Complete Guide
California community property probate rules. Learn how assets pass at death, surviving spouse rights, and the double step-up tax benefit.
California is one of nine community property states in the United States. This designation fundamentally changes how property passes at death and what rights a surviving spouse has in probate.
Understanding community property rules is critical for California probate because it determines what assets are subject to probate, what the surviving spouse automatically owns, and how to minimize taxes on inherited property.
What Is Community Property?
Community property is property acquired by either spouse during marriage. In California, each spouse owns an undivided 50% interest in all community property, regardless of which spouse earned the income or whose name is on the title.
This 50/50 ownership happens automatically by operation of law. You do not need to do anything special to create it.
Property That Is Community Property
- Wages and salary earned during marriage
- Business income generated during marriage
- Property purchased with community funds
- Retirement benefits earned during marriage
- Investment gains on community property
- Real estate purchased during marriage (even if in one spouse's name)
Property That Is NOT Community Property
- Property owned before marriage (separate property)
- Gifts received by one spouse, even during marriage
- Inheritances received by one spouse
- Property acquired after legal separation
- Property designated as separate by written agreement
How Community Property Passes at Death
When a married person dies in California, community property passes according to specific rules that differ from separate property.
The Decedent's Half
The deceased spouse can dispose of their 50% share of community property through a will or trust. If there is no will, their half passes according to California intestate succession laws.
The Surviving Spouse's Half
The surviving spouse already owns their 50% share. This half does not go through probate because it was never part of the deceased spouse's estate. The surviving spouse keeps it automatically.
Common Scenarios
Scenario 1: Will leaves everything to surviving spouse
Community property house worth $1,000,000:
- Surviving spouse already owns $500,000 (their half)
- Will transfers decedent's $500,000 to surviving spouse
- Surviving spouse now owns 100% of the house
Scenario 2: Will leaves property to children
Community property house worth $1,000,000:
- Surviving spouse keeps their $500,000 (cannot be given away by decedent)
- Decedent's $500,000 goes to children per the will
- Result: Surviving spouse and children own the house together
Scenario 3: No will (intestate)
Under California Probate Code 6401, if the deceased spouse dies without a will, the surviving spouse receives all of the decedent's community property. Combined with their existing 50%, the surviving spouse ends up with 100%.
Community Property vs. Separate Property in Probate
| Factor | Community Property | Separate Property |
|---|---|---|
| Who owns it | Both spouses 50/50 | One spouse 100% |
| Decedent can give away | Only their 50% | 100% |
| Surviving spouse's minimum | Their own 50% | Varies by intestate rules |
| Probate required | Only decedent's 50% | 100% may be subject to probate |
| Step-up in basis | Full 100% (double step-up) | Only decedent's share |
The Double Step-Up in Basis Advantage
California's community property status provides a significant tax advantage called the double step-up in basis.
What Is Step-Up in Basis?
When you inherit property, your tax basis (cost basis for capital gains purposes) "steps up" to the fair market value at the date of death. This eliminates capital gains tax on appreciation that occurred during the decedent's lifetime.
The California Advantage
In separate property states, only the decedent's share of jointly owned property receives a step-up in basis. The surviving spouse's share keeps its original basis.
In California, both halves of community property receive a stepped-up basis when one spouse dies. This is the double step-up.
Example
John and Mary bought a home in 1990 for $200,000. The home is now worth $1,000,000. John dies in 2025.
In a Separate Property State:
- Mary's half: Original basis of $100,000
- John's half: Steps up to $500,000
- Total basis: $600,000
- If Mary sells for $1,000,000, she owes capital gains tax on $400,000
In California (Community Property):
- Mary's half: Steps up to $500,000
- John's half: Steps up to $500,000
- Total basis: $1,000,000
- If Mary sells for $1,000,000, she owes $0 in capital gains tax
This double step-up can save tens or hundreds of thousands of dollars in taxes.
Learn more: California Step-Up in Basis Guide
Quasi-Community Property
California recognizes a special category called quasi-community property. This is property that would have been community property if the couple had lived in California when they acquired it.
When It Applies
If you moved to California from a separate property state, assets acquired during marriage in that other state are quasi-community property.
How It's Treated
At death, quasi-community property is treated like community property:
- Surviving spouse owns 50%
- Decedent can only dispose of 50%
- Double step-up in basis applies
During Divorce (Different Rule)
For divorce purposes, quasi-community property is also treated as community property and divided equally.
Community Property with Right of Survivorship
California offers a special form of community property ownership: community property with right of survivorship (CPWROS).
What Makes It Different
Regular community property requires some process (probate, spousal petition, or trust) to transfer the decedent's half to the surviving spouse. CPWROS transfers automatically at death, similar to joint tenancy.
Advantages
- Avoids probate for the property
- Automatic transfer at death
- Preserves the double step-up in basis (unlike joint tenancy)
- Simple retitling with death certificate
How to Create It
The deed must specifically state "as community property with right of survivorship." Generic community property deeds do not have this feature.
Best Use Cases
- Primary residence
- Investment accounts
- Bank accounts
- Any asset where the surviving spouse should automatically own 100%
Spousal Property Petition
The spousal property petition is a simplified probate procedure that allows a surviving spouse to transfer community property without going through full probate.
How It Works
- File Form DE-221 with the Superior Court
- Pay $435 filing fee
- Notify heirs and beneficiaries
- Attend one court hearing
- Receive court order confirming property transfer
Timeline
2-4 months, compared to 9-18 months for full probate
No Dollar Limit
Unlike the small estate affidavit ($208,850 limit), the spousal property petition has no dollar limit. A surviving spouse can transfer a multi-million dollar home using this procedure.
What It Covers
- All community property
- All quasi-community property
- Decedent's share passes to surviving spouse under will or intestate law
For complete details, see California Spousal Property Petition Guide.
Identifying Community vs. Separate Property
One of the most contested issues in California probate is whether property is community or separate.
The Presumption
Property acquired during marriage is presumed to be community property. The burden is on anyone claiming otherwise to prove it is separate property.
Tracing
Separate property can become mixed with community property over time. Tracing is the process of following the source of funds to determine character.
Example: A spouse inherits $100,000 (separate property) and deposits it into a joint checking account used for household expenses. Over years, money flows in and out. If the spouse later wants to prove remaining funds are separate property, they must trace the original inheritance through all transactions.
Transmutation
Spouses can change property from community to separate (or vice versa) through a written transmutation agreement. Oral agreements are not valid for transmutation.
Common Disputes
- Real estate purchased with both separate and community funds
- Businesses started before marriage but grown during marriage
- Retirement accounts with pre-marriage and during-marriage portions
- Inheritances deposited into joint accounts
Community Property and Estate Planning
Understanding community property affects estate planning decisions.
What a Will Can and Cannot Do
A will can dispose of the decedent's 50% of community property. A will cannot give away the surviving spouse's 50%.
If a will attempts to give the surviving spouse's share to someone else, that provision is invalid.
Trusts and Community Property
Community property can be transferred to a revocable living trust. When it is, the trust document controls distribution, but the community property character and tax benefits remain.
Beneficiary Designations
Community property accounts (retirement plans, life insurance) typically require spousal consent to name someone other than the spouse as beneficiary.
Frequently Asked Questions
Does community property go through probate in California?
The surviving spouse's 50% share does not go through probate because they already own it. The decedent's 50% share may require probate unless it passes through a trust, beneficiary designation, or the spousal property petition.
What happens to community property if there is no will?
Under California intestate succession law (Probate Code 6401), the surviving spouse receives all of the decedent's community property. Combined with their own 50%, the surviving spouse ends up owning 100%.
Can a spouse give away the other spouse's share of community property?
No. Each spouse can only dispose of their own 50% share. A will or trust that attempts to give away the other spouse's share is invalid as to that portion.
How do I prove property is community property?
Property acquired during marriage is presumed to be community property. Documentation showing the date of acquisition and source of funds supports the presumption.
What if we disagree about whether property is community or separate?
Disputes are resolved in probate court. Each side presents evidence. The court determines the character of the property based on tracing, documentation, and legal presumptions.
Does community property include property titled in only one spouse's name?
Yes. In California, how property is titled does not determine its community or separate character. Property acquired during marriage with community funds is community property even if titled in one spouse's name alone.
Related Guides
- California Surviving Spouse Rights
- California Step-Up in Basis Guide
- California Spousal Property Petition
- California Intestate Succession
Sources:
- California Family Code Sections 760-761 (Community Property)
- California Probate Code Section 6401 (Intestate Share of Surviving Spouse)
- California Probate Code Sections 13650-13660 (Spousal Property Petition)
- Internal Revenue Code Section 1014(b)(6) (Double Step-Up)
Last Updated: January 2026. California community property law is complex. This guide provides general information. Consult with a California estate planning or probate attorney for advice specific to your situation.