Question: My husband passed away about six months ago after a long marriage. We owned a house together and shared some bank accounts. After he passed away, I went to the bank and notified them about his passing. They took his name off our bank account and put it in my name alone. My husband ran up some credit card bills in the last few years of his life. I wasn’t really aware of the size of the bills because he had paid the accounts himself. I assumed that the payment each month was for the total credit card bill, but I was surprised to see that he was just paying the monthly minimum amounts. Now I have these card companies demanding payment for the total balance on the cards. What should I do?
Answer: As the surviving spouse in a community-property state like California, you may be liable for the debts of your deceased husband. You should, however, take your time before you determine whether to pay them off because the passage of time may be your best defense against enforcement and collection.
The first thing you will want to do is gather some information about the credit card account itself. You will want to see how exactly your name has been brought into the collection issue. If you are a joint account holder on the card, then the debt is, in fact, yours and passes to you. As a joint account owner, you can continue to make payments on the debt according to the credit card agreement. If, however, you are not listed on the account or are simply an authorized signer on the account, then the situation is different.
Liability for the debts of a decedent will vary state by state. In states that are not community-property law states, the surviving spouse cannot be held liable for the credit card debts in the name of the deceased spouse alone. But California is a community-property state. Here, property and debts acquired after the date of marriage and before the death of the spouse are community property and community debts. Creditors may be able to enforce and collect a community debt against your late husband’s estate or even you.
If your late husband’s estate requires the opening of a probate proceeding, then the executor of the estate will be required to notify creditors of the probate proceeding. Creditors who have been notified by the executor have four months to submit formal claims to the court for repayment. The claims will be paid from the funds gathered in the probate.
If no probate proceeding was required or opened, which sounds like your case, the debts may be enforced against the surviving spouse. 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 the surviving spouse. 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.
If a lawsuit is filed and the credit card debts are substantial or exceed the amount of community property he left behind, you should seek the advice of an attorney. With the help of an attorney, you may be able to negotiate a reduction in the amount of debt and also work out a payment plan.
It is hard enough to grieve the death of a spouse of many years. Having to deal with calls from a debt collector during this time can be troubling. But just as time may help heal the loss of your husband, the passage of time may be the best strategy you have to avoid his debts.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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