If your spouse passes away and leaves behind debt, your first instinct might be to panic. The written threats and unrelenting phone calls from bill collectors can all become overwhelming as you work toward settling your spouse’s estate while managing your grief. And this is after you told them your spouse had died! Those friendly folks in customer service are suddenly not so pleasant, understanding, or patient about you not wanting to, no questions asked, pay your deceased spouse’s debts.
Your worry, however, may be premature despite the annoyances. While a surviving spouse, due to Washington’s community property laws, may be responsible for paying off their deceased spouse’s debts, it’s not a given. At least, not that they will be responsible for paying them out of their own pocket. The following discussion addresses why.
A Decedent’s Debts in Terms of Community Property
Washington is a community property state, which means that debts incurred during the marriage are typically considered joint debts. Therefore, it could still be considered a shared responsibility if your spouse took out a credit card or loan while you were married, even if it was in only their name. That doesn’t mean collectors can go after you directly, however.
But, and it’s a big but, creditors might still have a claim on jointly owned assets or your half of the community property, which is why they’re sending letters and making calls. Though distressing, it’s not personal. It’s simply how the law in Washington goes about slicing the pie.
In your and your spouse’s instance, your creditors will want to know the circumstances around how to do the slicing based on the available assets. You must go through the probate process to demonstrate legally what is left in the estate. Speaking with a Seattle estate planning attorney as soon as possible for guidance is, therefore, best.
Co-signers and Joint Account Holders
This is where things can get murky: If you co-signed on a loan with your spouse or were a joint account holder, you may still be on the hook for that debt, whether your spouse is living or not. Same thing if you keep using their credit card after they died — that could bring you into the loop, even if you weren’t before.
There’s also something called the “family expense doctrine,” which may cause you to be responsible for necessary expenses, such as final medical bills. Again, this doesn’t mean you inherit the entire stack of debt — just that under certain circumstances, you could be expected to contribute to specific costs tied to your shared life.
Why It’s Important to Probate Your Deceased Spouse’s Will Promptly
You don’t need to run to the surrogate’s office the day after your spouse’s funeral, but it’s also smart not to wait too long, either. That’s because if your spouse left behind debts, you will want to protect yourself. The best way to do this is first to direct creditors to the estate for payment. If there’s enough in your spouse’s estate to cover any remaining debts, then the above discussion about whether you individually will be responsible is moot.
If there’s not enough in your spouse’s estate to cover any outstanding debts, however, how much you are responsible for and how you will pay those debts will become a subject for discussion. Before taking action, consult a Seattle estate planning attorney for guidance. They will be able to help you probate your spouse’s will and determine what, if any of your debts, you will be responsible for paying and from what source.
Prenups and Postnups as a Precursor to Estate Planning
The issues presented above could be avoided with a comprehensive estate plan and, in conjunction with one, a marital contract. Marital contracts include a prenuptial agreement if you plan on marrying or a postnuptial agreement if you are already married. Both can clarify details such as what assets or debts are separate property and what is marital property.
There is a caveat: While marital contracts can address estate planning issues, they are not a substitute for an estate plan. An estate plan addresses far more than a marital contract can, and it is made up of more than just a will. There are multiple documents in an estate plan, each of which serves a distinct function in protecting you and your loved ones in the event you become incapacitated and unable to make crucial decisions on your behalf or you die.
The elements of a Washington state estate plan can include the following, depending on your needs:
- Will
- Powers of Attorney (also known as POAs, of which there are two types: financial and medical)
- Living Will (also known as an advance directive)
- Trusts (revocable or irrevocable)
Though marital contracts can be valuable to estate planning and are one of the areas where family law and estate planning overlap, it’s best to speak with a Washington state estate planning attorney. They can help you determine which documents are appropriate based on your circumstances, including who you may want to hold various positions in your plan.
Talk to a Seattle Estate Planning Attorney About Who’s Responsible for Your Deceased Spouse’s Debts
While your spouse’s debts will usually get paid from your spouse’s estate, whatever assets they owned at the time they died, it’s not a good idea to simply ignore those nagging calls and letters from creditors seeking payment. That being said, you shouldn’t automatically assume you have to write a check either. Instead, talk to a Seattle estate planning attorney before you do anything for guidance on how to protect yourself, your assets, and your peace of mind.
At Elise Buie Family Law, our team of estate planning attorneys has extensive experience with probate and estate administration, including determining whether you will be responsible for any debts incurred by your deceased spouse. Contact us today or schedule a time to discuss your unique circumstances.
