Am I Liable For My Deceased Spouse's Debts?

If a credit card is in my deceased spouse's name, am I responsible for paying the balance?

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Bill's Answer: Answered by Mark Cappel

My condolences on your loss. If you remember anything I am about to write, please let it be this: Do not believe legal advice from collection agents. The legal advice collection agents tell people is usually incomplete or wrong, and is always self-serving.

Deceased Spouse’s Debt

Some people assume a decedent’s debt is forgiven or possibly written off by creditors. The law does not work that way, with the exception of federal student loans. However, spouses or other relatives are not responsible for the decedent’s debt automatically, either. Many collection agents take advantage of a debtor’s grief and ignorance of the law to imply the family must pay the decedent’s debt, but that may not be the case.

When a person dies with a will, the will controls the financial affairs of the decedent’s assets, which is called the “estate.” A will distributes assets, not debts. However, before any assets can be distributed to the heirs, all known debts must be paid by the executor. Therefore, the executor will sell assets in the estate to pay for any debts that remain. Only after the debts are paid will the remaining assets be distributed among the beneficiaries of the will.

If a person dies without a will, this is known as “dying intestate” in lawyer-speak. In this situation, the court appoints an administrator to handle the distribution of the decedent’s assets according to the laws of the state. As with dying with a will, assets are distributed after debts are paid.

Here is a key point: If the estate is insolvent the creditor has no legal right to collect the debt from family members, children, or friends. There is no feudal debt bondage that ensnares an entire family, at least not in the US. In most states, the creditor cannot collect from the spouse either. However, in community property states, the question becomes more complicated.

Deceased Spouse’s Debt in Community Property States

Community property states include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Generally speaking, in community property states, debt incurred by a spouse for the benefit of the family is considered a “community” debt, and therefore the spouse is responsible for repaying that debt.

However, no two community property states use exactly the same laws. As a consequence, if you live in a community property state and have a spousal debt issue, it is imperative that you consult with an attorney in your state who has probate law experience so that you understand your rights and liabilities in your particular circumstances.

Summary

For additional information, see the Federal Trade Commission documents Paying the Debts of a Deceased Relative: Who Is Responsible? and FTC Issues Final Policy Statement on Collecting Debts of the Deceased.

I hope this information helps you Find. Learn & Save.

Best,

Bill

Bills.com

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Comments (132)


Stayce E.
Roanoke, VA  |  March 29, 2014
If a spouse dies unexpectedly, and there is no life insurance or will, what happens to an outstanding vehicle loan if it's only in the decedent's name? Can the surviving spouse assume the loan payment and keep the vehicle? Or does the vehicle revert back to the bank's possession?
Bills.com
April 09, 2014
Consult with a lawyer in your state who has probate law experience for a definitive answer to your question.

Generally, when a spouse dies intestate (without a will) the surviving spouse gets 50% of the estate, and the heir(s) get the other 50%. In a case where the decedent is alone on a contract, unless the loan or lease states otherwise, the surviving spouse does not have any special right or liability to assume the loan or lease. The surviving spouse can contact the lender and ask to assume the loan, but the lender has the right to say no.

When a decedent dies without a will, the court appoints an administrator to manage and distribute the assets and pay any liabilities. The administrator should discuss a voluntary repossession with the lender or sale of the vehicle.
Andy B.
Houston, TX  |  March 03, 2014
what about in the case of a student loan whereby the student has defaulted the loan that was guaranteed by a grandparent. The guarantor dies with an estate. Is the estate responsible for the debt or will the responsibility move back to the student in default?
Bills.com
March 10, 2014
There's no one-size-fits-all answer here. The family needs to consult with a probate lawyer about the estate, and in particular about any of the decedent's liabilities including the delinquent student loan.
Maddy D.
Wood Village, OR  |  January 02, 2014
My significant other has been recently diagnosed terminal cancer and given a few months to live. He doesn't have any assets, our house is in my name only. He also doesn't have any credit card debt or anything like that. What he does have is a large debt for back child support in another state for a child that he didn't know existed for the first 13 years of her life. Apart from that, he owes a few thousand in back taxes, and a couple thousand in medical bills that accrued in the time between his diagnosis and when he started getting disability /Medicare. So, we don't have any joint debts and have never been legally married, though we've been together for 10+ years and have 2 young children together. He wants us to get married so that I will be quality receive social security survivors benefits when he passes. We've talked about getting married for years, but now there's a sense of urgency involved. My only concern would be that I would be responsible for his debt after he dies. It all would be from before we were married, so I wouldn't think so, but I've been getting conflicting opinions on the matter. We live in Oregon, which is not a community property state if that makes a difference. Any advice would be appreciated!
Bills.com
January 03, 2014
Your concerns are well founded. Consult with an Oregon lawyer who has probate experience to learn what liabilities you will have should you marry. In particular, ask about Oregon's doctrine of necessaries (sometimes called doctrine of necessities) law to learn if a spouse has liability for his or her deceased spouse's debts.
Michelle N.
Tifton, GA  |  December 26, 2013
My husband passed away 6 months ago. We had been separated for 7 years. When he passed away he lived in CO and I lived in GA. Now a collection agency debt is showing up on my credit report from a doctors office in CO. Am I responsible for this bill? Thank you for your time.
Bills.com
December 27, 2013
I do not think the collection agent has a legal leg to stand on in demanding you pay your husband's medical debt, although only an attorney can give you legal advice.

A little background. Under the common law, a husband had the legal responsibility to pay for the care of his wife. This is called the "doctrine of necessaries" or "doctrine of necessities." Many states modified the doctrine of necessaries to make the wife equally responsible for the care of her husband. Over time, states wrote variations on the doctrine of necessaries to give spouses liability for the cost of each other's medical care and other necessities of life.

You mentioned you reside in Georgia. The Georgia Legislature repealed the doctrine in 1979 for spousal liability. Therefore, a Georgia court will not support the collection agent's claim you have liability for the debt. But what about a Colorado court where your husband resided?

In Colorado, the statute making a husband and wife jointly liable for family expenses does not apply where the husband and wife have separated and live apart (See Colo. Rev. Stat. § 14-6-110 (1995); O'Brien v. Galley-Stockton Shoe Co., 173 P. 544, 544 (Colo. 1918)).

My advice? Send the collection agent a cease communications notice. Then consult with a lawyer in your state should you receive a notice the collection agent filed a lawsuit against you.
Clara A.
Jackson Heights, NY  |  September 07, 2013
My husband passed away 7 years ago from lung cancer. When he purchased the house he did not put my name on the deed. When he passed I was able to transfer the deed to my name with a will he left behind. All the gas and utility bills were and still are in his name only. I have been paying these bills but I can no longer keep up with them. When he passed these bills were sky high because he was unemployed before he passed and had an oxygen machine which made the electric bill excessive. I have never been able to pay what was owed when he passed I only pay the new charges each month. For example my light bill is 20,000 and each month I receive a bill for new charges so I pay the new charges but not the $20,000. I have young kids at home and we have already went through multiple occasions of no light or gas or hot water. Is there a way I can call national grid and coned for them to cancel these accounts and then I can open a new account in my name to start over? Please help me.
Bills.com
September 13, 2013
It is unfortunate you did not ask for legal advice when your spouse passed away 7 years ago to resolve his debts using your state's probate laws and procedures.

I am not aware of any grant or similar program for people in your circumstances. Consult with a lawyer in your state who has consumer law or bankruptcy experience about your options to resolve the debt.
B F.
Tucson, AZ  |  August 03, 2013
After a long, harrowing illness and death, my husband bequeathed to me all that was left save enough to survive the month following his death on the back of the hotel flyer he wrote a suicide note on and only debt and despair was all I could get from it. He racked up $15K on a B of A credit card in his name. I had been issued a card, which was cut up, but signed nothing. He agreed to have a second card sent. This $15K debt and a foreclosure show on my credit report. If I am not obligated, how can I get it off without filing for bankruptcy, something I cannot yet afford to do? I was told right after he died that if I made a timely minimum payment I could get a lower interest rate and payment more affordable. I tried to honor what I felt was my obligation and made two. I jumped through hoops for Financial Hardship Assistance as well. I imagined someone say, "Who wants to talk to the widow. No one wants to be mean to a new widow. Finally, after many calls, a cranky woman was forthright enough to say I was insolvent, no assistance for me. I was angry and knew I'd not pay dime one to B of A ever but I don't need court dates and would love to not have foreclosure AND bankruptcy on my credit report. Ironically, my late husbands credit score is a few points higher than mine. Can I get B of A to remove it without the expense of a lawyer and bankruptcy 3 years after my husband's death? I would be so encouraged and happy if this is possible and I am very articulate and willing to go head-to-head with B of A on my own. Thank you.
Bills.com
August 05, 2013
Everyone dies with an estate, including a person whose amount of debt exceeds the amount of their assets. In every state, the survivors of the deceased must follow a process called probate. As we mentioned in the article above, you may have no, some, or total liability for the Bank of America debt under your state's probate laws. No one can tell you if you have no, some, or total liability without analyzing your spouse's whole situation and the state probate laws where he resided.

You need the advice of a probate lawyer. You mentioned you are insolvent, and cannot afford a lawyer. Call your county bar association and ask for the names of the organizations that provide no-cost legal services to people with low or no income in your area. Make an appointment with one of the organizations, and bring all of the documents and letters you have regarding the debt to your meeting. The lawyer you meet will advise you accordingly. And, if you have no liability for the debt, the lawyer will help you write an effective letter to Bank of America to stop its collection activities.

You indicated you reside in Arizona. If the decedent also resided in Arizona, see the Arizona Judicial Branch Overview of Probate Resources to learn more about Arizona's probate laws.
Melissa T.
Kingsport, TN  |  July 30, 2012
My husband was in the hospital in 08, he passed away in 09. In collections a bill in his name, which I have a copy of was in his name and they switch it into my name and they are taking me to court and I told them he passed away and it is only me and my 2 girls and I can't affor to pay upfront or payments to our incoming bills $1500. Can they switch the names and take me to court and make me pay his bill? Thats not right.
Bills.com
July 31, 2012
What you described is possible under three circumstances:
  • At some point during your spouse's hospital stay, you signed a document, called a guarantor agreement, indicating you accept responsibility for the debt if your spouse does not pay it.
  • You and your spouse resided in a community property state where the presumption is the debts incurred by one spouse are owed by both.
  • You and your spouse resided in a state with a doctrine of necessaries rule that requires spouses to pay for their spouse's necessities of life.

Do not assume you have liability for the debts just because the hospital's collection agent says so. Consult with a lawyer in your state who has consumer law experience to learn if the hospital's assigning the debt to you is consistent with your state's laws.

Jan H.
Chesterfield, MO  |  April 15, 2012
Yes I was wondering if you would be so kind to answer a couple questions for me please. My sister passed away in January 2012, she had a will and my siblings and I were appointed the executors of her estate. We have tried to grant all of her wishes but unfortunately not everything was in order as she thought... She had a little insurance policy that allowed us to pay for her funeral expenses and all her outstanding debt, utilities, credit card debt and miscellaneous. Where the problem comes in is that she owned her own home, was never married so had no children and her name is the ONLY name on the deed and loan of her home. She did not leave any of her siblings as a beneficiary. My question for you is we feel forced to let the bank foreclose on the home as we can not pay off the outstanding debt, there is no money to do so. We continued to pay on the home as long as we were able with the money that was left from the insurance policy. Now that we have decided to let the home go back we are being told that we may still be held responsible since we were appointed the executors. Again our names are on nothing other than the will listing us as executors of the estate. I have been told even if I let the house go back that my own credit can be jeopardized. Will you please put my mind at ease with the real facts of the matter? I need to hear the correct information from someone that is an expert in this field. Thank you very much for any information you can give to me.
Bills.com
April 15, 2012
Whoever told you executors have personal liability for the estate's unpaid liabilities misstates probate law. Consult with a lawyer in the decedent's state of resident who has probate experience to learn more about how to probate the estate in accordance with the law.
TL H.
Greenacres, FL  |  January 31, 2012
My sister died 4 years ago and she left me, my siblings and nephew on her will. my sister also left the will in the hands of an attorney as executive. Me and my sibling asked this lawyer to give the home to my nephew. We had nothing to do with the property and now 4 years later the home owners association is sueing me because my name was on the will. How do I remove my name from the property?
Bills.com
January 31, 2012
You name appearing as a beneficiary on a will should not determine liability for a debt. Something else is going on here. Perhaps the property was never titled in the nephew's name? Consult with the probate lawyer you mentioned to learn more.
Jason H.
Houston, TX  |  January 18, 2012
My father in law has terminal cancer currently and the doctors are estimating another month of so for him to live, we reside in Texas. My question is this: Is his wife legally responsible for his unpaid medical bills and what happens to their home once he is deceased? Does the home get sold to cover the medical bills? She is the primary on their health insurance and she is on the title of house they own that is paid off.
Bills.com
January 20, 2012
You mentioned Texas, and I will assume the others involved here are Texas residents, too. The answer to your first question is maybe, depending on Texas' community property law and doctrine of necessaries. I want to emphasize the following two points:
  1. Consult with a Texas lawyer who has probate experience now
  2. Do not believe the legal advice from collection agents regarding the family's or spouse's liability for a decedent's debts. Collection agents have one job, and it is not giving complete or accurate legal advice.

I am not answering your question deliberately. That is because I am not trained in Texas law, nor do I feel competent to offer an observation about the spouse's liability here. A lawyer's time is not cheap, but bad legal advice is expensive.

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