A spouse's death creates a difficult and demanding time for the surviving partner. As much as you want space and time alone to process your grief, you may have specific responsibilities related to settling your deceased spouse's affairs. This could include paying off your deceased spouse's debt.
Most Americans have some type of debt. The obligation to pay debts does not go away when a person dies. The deceased's estate (money and property owned by the decedent at their death) pays most debts. They often do not transfer to a surviving spouse or other beneficiaries. But, in some cases, you may be responsible for paying off your deceased spouse's creditor claims.
You should discuss questions about your debt payment obligations and rights with an attorney who specializes in estate planning and administration. If the legal duty to pay off a spouse's debt falls to you, it has implications for your finances, so you will want to be clear on the laws where you live. If debt collectors contact you, know that you have rights as well.
About 80 percent of Americans have some type of debt, from credit card debt and student loans to mortgage debt and personal loans.[1] An estimated 13 percent of Americans with debt expect that they will never pay it off during their lifetime.
The average American has more than $90,000 in debt.[2] Collectively, Americans owe $14 trillion. More than half of this amount is mortgage debt, which is not surprising since a house is the largest purchase most Americans ever make. What may be surprising, however, is that people forty-five to fifty-four years old hold the most significant average debt. While Gen Xers have the largest average debt balance ($135,000), Baby Boomers, many of whom are at or near retirement age, hold the next-largest debt load (nearly $100,000). Members of the Silent Generation (age seventy-five and over) owe about half as much as the average Millennial. However, people in the highest age category still have significant debt, owing to an average of more than $40,000.
In short, debt does not discriminate by age. Even as people near the end of life, they can struggle financially. And when a debtor passes away, questions arise for their surviving loved ones. Chiefly, are they responsible for paying their deceased spouse's debts?
Before we delve into a surviving spouse's possible debt obligations, let's briefly address the formal post-death debt legal process.
Probate is the legal process of distributing a person's property after death. During probate, the executor distributes estate assets (everything a person owned at the time of their death) according to the deceased's will if they had one or to their legal heirs. But first, the executor pays any debts. The executor then passes the remaining assets to heirs or beneficiaries.
Usually, the estate pays funeral expenses and estate administration costs (e.g., court fees and attorney fees) first, followed by taxes and then other forms of debt, such as loans and credit card balances. Assets such as life insurance policies and other accounts with a named beneficiary, assets in trust, and jointly owned property are not subject to probate. In addition, each state has different rules for prioritizing the order in which the administrator must pay debts.
This explanation of how probate works is, of course, highly simplified. An attorney specializing in estate planning and administration can fill you in on the complete process. They can assist you if the will names you the estate administrator (the person overseeing the probate process and working with the probate court).
An estate that lacks the money to pay off its liabilities is insolvent. There may be nothing a creditor can legally do to collect a debt from an insolvent estate, and the debt could just go unpaid. But, in the following situations, you may be on the hook for your deceased spouse's debts:
There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In Alaska, couples signing a special agreement can opt for community property treatment. If you live in one of these states, the debts your spouse incurred during marriage are legally also your debts.
As a result, if the estate is insolvent and cannot cover your deceased spouse's debts, you may be personally liable for paying them, even if they were exclusively in your spouse's name. Creditors can come after you for debts such as medical expenses and outstanding credit-card balances. They could even have the right to garnish your wages, put a lien on or seize your property, or take money from your bank account.
Exceptions apply to the shared-debt rules of community property states. Generally, you are responsible only for debts you took on as a member of a married couple. Any debt your spouse incurred before you married is generally not yours unless you explicitly agreed to take it on. Also, you may not be responsible for a spouse's debt if you were legally separated when they passed away. In addition, property that you received as a gift or inheritance is typically considered your separate property. State law may protect it from your spouse's creditors. Check with an attorney specializing in estate planning and administration for guidance on specific community property rules in your state.
Unless you live in a community property state or are legally obligated to pay your deceased spouse's debts, you should not worry about spousal obligations. But debt collectors may contact you anyway.
You may need to hire an attorney to prove you are not liable for your spouse's debt. Creditors could attempt to collect the owed money from assets that pass to you outside probate. They might even try to sue you personally to collect the debt. Neither of these tactics will work, but simply ignoring a legal filing is a bad idea.
Debt collectors have the right to contact a deceased person's spouse to find out who is authorized to pay the estate's debts, according to the Consumer Financial Protection Bureau.[3] However, the bureau adds, they cannot represent that you are personally responsible for paying the debt unless you are legally obligated to do so.
There are rules to debt collection under federal law. As a debtor's surviving spouse, you have the right to tell a debt collector to stop contacting you. After making such a request in writing, they must end communications with you. However, they can still try to collect the debt from either you or the estate with an official filing.
Any debt you do not personally owe should not affect your credit score. Still, a debt collector could improperly report your spouse's obligations to a credit reporting agency under your name. Should that happen, contact the credit reporting company and file a dispute to get the erroneous information removed from your credit report.
After losing a spouse, the grieving process complicated by the probate process and lingering questions about debt and finances can cause you stress. To best honor your spouse's legacy and protect your rights, it helps to understand the laws around estate administration, unpaid bills, and creditors. Though you may not have to pay your deceased spouse's debt, you may have to serve as their representative, executor, or administrator and deal with creditors.
Are you unsure of your rights and obligations regarding a spouse's debts? An estate administration attorney can answer your questions and advise you on which steps to take next. Schedule a strategy session today.
[1] American Debt Statistics, Shift Credit Card Processing (Mar. 2021), https://shiftprocessing.com/american-debt/.
[2] Megan DeMatteo, The average American has $90,460 in debt—here’s how much debt Americans have at every age, CNBC (Nov. 18, 2021), https://www.cnbc.com/select/average-american-debt-by-age/.
[3] Am I responsible for my spouse’s debts after they die? Consumer Fin. Prot. Bureau (May 16, 2022), https://www.consumerfinance.gov/ask-cfpb/am-i-responsible-for-my-spouses-debts-after-they-die-en-1467/.
(By Appointment Only)
14425 Falcon Head Blvd
Bldg E-100
Austin, TX 78738
