Montgomery, AL asked in Real Estate Law for Alabama

Q: is a spouse liable for a mtg she's not on if spouse passes?

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1 Lawyer Answer

Kevin M Ryan

PREMIUM
Answered
  • Mobile, AL
  • Licensed in Alabama

A: If you are married and your deceased spouse is the only party who signed as the borrower under a debt, including a mortgage, then you as the non-borrower are not personally liable. A secured lender, however, retains its rights which were granted by the deceased spouse pre-death, and can sell the property at foreclosure sale if the mortgage payments fall behind. If the debt is an unsecured debt, an unsecured creditor has only a claim against the estate of the deceased spouse, and only if the estate has to be filed to transfer assets. Not all assets have to pass through probate, particularly jointly owned assets... they pass to the joint owner immediately upon death of the other owner. That is part of what is referred to when lawyers mention "estate planning." Estate planning is a process of setting up ownership of assets to preserve the assets for the next generation or surviving spouse by protecting the assets from excessive taxation and creditor claim(s).

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