After the death of a spouse, litigation can frequently look a lot like a divorce. Often the death of a spouse occurs while a divorce action is pending. Other times, disputes arise after the death of a former spouse. In such circumstances, which way do I go—to the family court or to the probate court? What happens next can be reminiscent of that famous scene from “The Wizard of Oz” when Dorothy, intrepidly following the Munchkins’ advice to follow the Yellow Brick Road, comes to a fork in that road. Unsure of which way she must go, the Scarecrow, still hanging from his perch, speaks up offering advice that “this way is a very nice way,” but “[i]t’s pleasant down that way, too,” and finally, pointing in both directions, “some people do go both ways.” Of course, Dorothy had an even more fundamental question: “How can you talk, if you haven’t got a brain?” The Scarecrow’s response, though inexact, was rather wise: “I don’t know. But, some people without brains do an awful lot of talking, don’t they?” This article is intended to take a step beyond the Scarecrow’s inexact advice to help the brain make a reasoned choice of courtrooms.
The California superior court has jurisdiction over proceedings arising under the Probate Code and the Family Code assuming other jurisdictional requirements are met.1 For example, in a decedent’s estate proceeding, the superior court has jurisdiction if the decedent died while domiciled in California or left property in this State.2 In the case of a trust, the superior court has exclusive jurisdiction over a trust if California is the principal place of the trust’s administration.3 The superior court has jurisdiction over a marriage if California is the last place where the married couple resided together and there is personal jurisdiction over the parties.4 All courts in proceedings that arise under the California Probate Code or California Family Code are courts of general jurisdiction.5 However, many superior courts of the State of California are organized into divisions that include a family law court (“Family Court”) and a probate court (“Probate Court”).
When a local superior court is organized by division, the probate division exercises jurisdiction over matters under the Probate Code and the family division exercises jurisdiction over matters under the Family Code. Judges and counsel commonly refer to the probate division and family division as the Probate Court and Family Court, even though all “courts” can exercise the powers of courts of general jurisdiction and are divisions of one California superior court. While the organization of the superior court into divisions (generally by the county in which the court is located) is for administrative purposes and is not required because of differences in jurisdictional power, the practical effect is that in most superior courts in California the question of which division, probate or family, one must proceed with a case is not purely academic. Indeed, “where a distinct subject matter jurisdiction is exercised by a special department or ‘court,’ such as the probate, criminal or juvenile court, choice of the wrong department is more than mere error. If the wrong department attempts to exercise this special subject matter jurisdiction, it acts in excess of jurisdiction, and prohibition will lie to restrain the proceeding.”
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