Information About Common Law Marriage and Debt

First, I strongly encourage you to consult with an attorney licensed to practice law in your state to discuss your late husband’s estate, the legal status of your marriage, and how his debts may affect your future finances. If you live in a state which uses a community property scheme for marital assets and debts, you may be liable for debts incurred by your late husband. In those states which recognize community property, many assets and obligations of one partner in a marriage become “community” assets or obligations. By extension, this means that one spouse can be held liable for many debts of the other spouse even if his or her name was not on the account which resulted in the debt. However, even in a community property state, one spouse has the ability to create “non-community” assets and obligations. Generally speaking, for a debt to be considered community property, the debt must have been incurred to benefit the community; for example, if the debt were incurred to purchase items for the marital home, it would likely be considered community debt. However, if the debt were incurred to purchase a boat which one spouse never used and which was kept separate from other community assets, the debt may not be considered community debt, and the non-debtor spouse may therefore not be liable. In addition, debts incurred by either spouse before marriage are not generally considered community property, so the non-debtor spouse should not be held liable for the pre-marriage debts of the other spouse. To read more about community property laws, you can visit http://en.wikipedia.org/wiki/Community_property.

Of those states which use a community property system, only two currently recognize common law marriages—Texas and Idaho. If you do not live in one of these two states, it is likely that you are not liable for any of your late husband’s debts, unless, of course, you co-signed the debts with him. If your state does not recognize common law marriage, then no marital community existed, thus no community debt could be incurred. The only recourse that the creditors would have to collect on these obligations would be to file a claim against any money or other assets your late husband left behind; however, if your husband’s estate is insolvent, as many people are when they pass away, the creditors will probably not receive any payment from your late husband’s estate. Regardless of what funds the creditors are able to collect from your spouse’s estate, if you do not live in a community property state, you likely have no obligation to pay these accounts.

As mentioned above, in order to determine if you could be liable for your late husband’s debts, you need to determine whether or not your common law marriage is recognized by state law. You must keep in mind that only eleven states currently allow the formation of common law marriages, with a few more recognizing those created in the past. Even if you live in a community property state, if your state of residence does not recognize common law marriage, you may not actually be married, meaning that community property law does not apply. In those states that allow common law marriage, couples must generally meet several requirements, including cohabitating for a significant length of time, representing that they were married to others, and intending to be married. The actual requirements vary from state to state, and can be quite complicated, so I strongly encourage you to communicate with a qualified attorney as soon as possible to discuss the legal status of your relationship with your late husband, and how your marital status may affect your liability for his debts. If you would like to learn more about common law marriage, you can visit http://www.expertlaw.com/library/family_law/common_law.html.

In most cases, the beneficiary of a deceased individual’s estate does not become liable for the decedent’s debts. However, given the various legal issues involved in your situation, you would be very well advised to speak with an attorney to further discuss your marital status and your husband’s debts. I wish you the best of luck for your financial future, and hope that the information I have provided helps you Find. Learn. Save.

Best,

Bill

www.bills.com/