Am I responsible for the debts of my deceased spouse?
One of the common questions asked me in my practice by surviving spouses is, Am I responsible for the debts of my deceased spouse?” Let’s talk about the answers.
One of the common questions asked me in my practice by surviving spouses is, which, if not all, of my deceased spouse’s debts am I personally liable?
This question typically has more facets than can reasonably be discussed in the limited space allowed, but a basic understanding of how these debts are classified can at least offer a beginning in understanding.
There are five potential classifications of property held during a marriage which can be meaningful after the death of a spouse.
Property can be:
Separate property of the deceased spouse;
Separate property of the surviving spouse;
Community property subject to the joint management of both spouses and referred to in this article as joint community;
Community property subject to the sole and separate management and control of the deceased spouse, referred to in this article as deceased’s special community;
Community property subject to the sole and separate management and control of the surviving spouse, referred to in this article as survivor’s special community.
The first step in classification of property is to establish if it is community property or separate property.
Separate property for purposes of this discussion shall mean that which is acquired by either spouse prior to marriage or by gift or by inheritance. This is a general definition only.
At the time of the death of a spouse, separate property is classified as either:
Separate property of the decedent ? This property will always be liable for the debts of the deceased; or
Separate property of the surviving spouse ? The separate property belonging to a surviving spouse is not normally subject to the debts of the deceased spouse unless liability is established by other rules of law.
Community property may be divided into three separate classifications as follows:
Deceased Spouse’s Special Community ? This property is community property which was subject to the deceased spouse’s sole management and control is liable for debts incurred by the deceased spouse.
Surviving Spouse’s Special Community ? This property is community property which was subject to the surviving spouse’s sole management and control. It is not liable for separate liabilities of the deceased spouse incurred before marriage or for non-tortious liability that the deceased spouse incurred during the marriage, unless both spouses have been made personally liable by particular acts. Those acts include liability incurred when the deceased spouse was acting as the agent of the surviving spouse or when the deceased spouse incurred a debt for necessaries as are described by statute. For example, a surviving spouse’s special community might be liable for debts incurred to care for or improve the community, but it probably will not be liable for the debt incurred for some type of personal use that provided no benefit to the community. These necessaries are more fully documented by statute.
Joint community property is that property which was under the joint management of both the decedent and the surviving spouse. This property will be subject to liability claim against the estate of the deceased spouse.
One of the common questions asked me in my practice by surviving spouses is, “Am I responsible for the debts of my deceased spouse? Hopefully this post has provided some answers to this question.
