The Power a Surviving Spouse Enjoys Over the Deceased Spouse’s Estate

Beginning in 1993, the rules governing who inherited a deceased spouse’s property in the absence of a will changed.  The surviving spouse inherits the decedent’s community interest if all of the decedent’s descendants were also the spouse’s descendants.  If at least one descendant was not a descendant of the surviving spouse, then the surviving spouse retains his or her one-half community interest and the deceased spouse’s community interest passes to his or her descendants.


While the probate code states that no administration shall be necessary in cases where a spouse dies without a will and all of the property passes to the surviving spouse, in practice, if there are any title problems (e.g. title is one spouse’s name, etc.) an administration or heirship proceeding will be necessary to clear title.


The probate code gives the surviving spouse significant powers when no one has qualified as executor or administrator.  For example, the surviving spouse, whether husband or wife, as the surviving partner of marital partnership has the power to sue or be sued for the recovery of community property; to sell, mortgage, lease, or otherwise dispose of community property for the purpose of paying community debts; to collect claims due to the community estate; and has such other powers as shall be necessary to preserve the community property, discharge community obligations, and wind up community affairs.  This procedure is known as an “unqualified community administration.” The spouse’s remarriage has no effect on these powers!  Note that the surviving spouse only has the power to sell property to pay community debts; in other words, if there are no community debts, then there is no authority to sell assets.  The Probate Code requires the surviving spouse to keep an accounting of all expenses and debts paid and the disposition of the community made by him or her.


When a personal representative of the estate of a deceased spouse qualifies, the personal representative is authorized to administer:


(1)  The separate property of the deceased spouse;


(2)  The community property which was by law under the management of the deceased spouse during the continuance of the marriage; and


(3)  All of the community property that was by law under the joint control of the spouses during the continuance of the marriage.


While this rarely happens, if someone other than the surviving spouse is appointed as executor or administrator of the deceased spouse’s estate, the above rule allows that executor or administrator to administer the surviving spouse’s community property that was under the joint control of the spouses (usually the majority of the marital estate).  This can be an enormous leverage point in probate disputes.