Huntington Beach, CA asked in Estate Planning, Collections and Probate for California

Q: Is the surviving spouse liable for the deceased spouse's credit card debt if only in the deceased's name?

If credit card debt was taken out by the deceased spouse in their name only and without the surviving spouse's knowledge, what rights does the surviving spouse have? Are they still liable for the debt? There is no will or estate.

2 Lawyer Answers
John B. Palley
John B. Palley
Answered
  • Estate Planning Lawyer
  • Roseville, CA
  • Licensed in California

A: That's tough to answer as there are many variables and ways it could go. A general rule in probate is that a person (spouse or otherwise) is liable for debts (even if they didn't know about it) to the extent they received assets from the decedent. So if the spouse received money/assets at death then arguably they may be liable. However, if a probate isn't necessary it may be harder for a creditor to collect. Often in a spousal death a full probate is not needed so it may be that the creditor could be avoided. Additionally, even if a full probate is required many creditors will walk away from debt rather than sue. Thus a person could reject the debt in probate and very often walk away without paying anything. There are other options as well. Hiring an experienced probate attorney would be key here in my professional opinion. Good luck. -John Palley

James Edward Berge , Deanny Lungu and Nina Whitehurst agree with this answer

Bill Sweeney
Bill Sweeney
PREMIUM
Answered
  • Probate Lawyer
  • San Juan Capistrano, CA
  • Licensed in California

A: California is a community-property state. Therefore, property and debts acquired after the date of marriage and before the death of the spouse are community property and usually community debts. Creditors may be able to enforce and collect a community debt against your late husband’s estate or even you. If no probate proceeding was required or opened, which sounds like your case, the debts may be enforced against you. But the credit card company will need to take formal legal action to collect on the debt.

If the credit card company refers the account to a collection agency, the agency will make calls to you. Although collection calls may make threats of legal action, the threats are not the same as legal action itself. Ultimately, the creditor will need to bring a lawsuit. In California, the time frame for a creditor to bring a lawsuit to collect on the debt of a decedent is limited to one year from the date of death. So the passage of time here can be your best weapon in the fight against the credit card company’s collection efforts. Depending on the size of the debt and the amount of time left to collect it, the credit card company may decide whether to file suit or fold.

Deanny Lungu agrees with this answer

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.