how to avoid probate when the first spouse dies

The Community Property Agreement: How to Avoid Probate When the First Spouse Dies

Most couples mistakenly believe that their family home, held jointly with their spouse, automatically transfers to the surviving spouse.
They are wrong.
Although the home is titled as “married couple” or designated “community property,” title doesn’t automatically transfer to the survivor at death. 
By law, we are able to leave our assets to whomever we want.  Ordinarily, the person we want to leave it to is our spouse. 
We handle many probates for grieving widows, who, besides other tasks, must also go through probate. Frankly, I’m tired of delivering this news. 
But, there is a crucial, and simple, tool that can help: the community property agreement. Specifically, for married couples, this legal document can be instrumental in ensuring the smooth transition of assets, especially the primary residence, avoiding the burdensome probate process upon the death of the first spouse.

Understanding Community Property Agreement

Simply put, is a legally binding contract between spouses that designates some or all of their property as community property. In states like Washington, California, and Texas, assets acquired during marriage are considered community property, equally owned by spouses. Couples can dictate whether their community property and jointly held assets go directly to their spouse upon their death.

Probate Isn’t Fun

Probate, the court process of administering a deceased person’s estate, can be a time-consuming, expensive, and is a public affair. Without proper estate planning like a community property agreement, the surviving spouse may face probate, costing time, money, and energy.
Moreover, the probate process exposes the estate to public scrutiny, compromising privacy and inviting challenges from disgruntled parties. For families already grappling with the emotional strain of loss, probate can exacerbate stress and prolong the healing process.

Safeguarding the Family Home

For many couples, their primary residence holds immense sentimental and financial value. It’s not just a piece of property but a symbol of their life together, where memories were made and dreams were shared. Preserving the family’s legacy requires safeguarding their primary residence, holding immense sentimental and financial value, from the probate process. Ensuring the surviving spouse’s continued security.
A community property agreement serves as a shield, preemptively confirming the transfer of ownership of the home upon the first death. A community property agreement preemptively confirms the transfer of home ownership upon the first spouse’s death. It enables seamless transfer to the surviving spouse, bypassing probate, and keeps the family home within their control. As a result, the family home remains within the family’s control, avoiding the uncertainty and expense associated with probate proceedings.

Peace of Mind Through Proper Planning

A community property agreement gives couples peace of mind, ensuring their wishes and loved ones’ protection. Couples can alleviate the burden on their surviving spouse and heirs by proactively addressing estate planning matters.
Open communication and collaboration in estate planning strengthens marital bonds and fosters unity in facing life’s uncertainties together. By prioritizing proactive planning and embracing the legal tools available, couples can safeguard their legacy and empower their loved ones to navigate the future with confidence.


The death of the first spouse is a challenging stage for the survivor. There is paperwork, phone calls to make, people to inform, decisions to be made… all while living in a fog of grief.  The survivor should not have to deal with probate among other demands during the challenging stage. A community property agreement can make the death of the first spouse measurably less burdensome. Utilizing a community property agreement in their comprehensive estate plan ensures a smoother asset transition and family harmony.  As the saying goes, “An ounce of prevention is worth a pound of cure.” In matters of estate planning, securing your legacy through a community property agreement is indeed a wise investment in the future. Contact the attorneys at The Harbor Law Group to learn more about this, and other, estate planning documents.