Do I Have to pay my Deceased Spouse's Debts?

By Lane V. Erickson, Idaho Estate Planning Attorney

As an estate planning and probate attorney in Idaho I often speak with individuals who spouse has passed away. This is more particularly true because I offer a free 30-minute consultation to answer questions and to discuss what if any probate steps need to be taken. I do this because I find most people are hesitant to come to an attorney because they believe talking with them is going to be expensive and time-consuming. I do my best to make this initial consultation as simple and easy as possible and to provide as much information as I can. I found that doing this eases the minds of a surviving spouse or family members. 

During this consultation one of the questions that often comes up as do I have to pay my deceased spouse’s debts? This seems like a simple question, but the answer really depends on the circumstances and requires a little bit of discussion. 

The purpose of today’s article is to discuss this very specific question as it relates to married couples living in Idaho. Keep in mind that this article is just a summary. If you have questions or concerns, we encourage you to download and review our free Estate Planning Questionnaire and schedule a free 30-minute consultation where we can meet with you personally to answer your questions. This is the best no obligation way to make sure your own estate planning is on the right track. 

To answer this question, we will start with helping you understand that Idaho is a community property state. What this means is that there is a presumption under Idaho law that all assets and all debts that exist during a marriage are jointly owned and the joint responsibility of both spouses. Let’s use a home as an example to show how this works. 

A married couple purchasing a home will usually go to the bank together to apply for a home loan or mortgage. Then, when the couple actually purchases the home the deed or title to that home will list both the husband and the wife as owners. In this instance, it’s clear that both the husband and the wife are obligated to pay the debt associated with the mortgage and are also joint owners of the home. 

This same presumption is true when there is credit card debt, or utility debt, or debt for the purchase of a vehicle. If it happens during a marriage, then both spouses are normally responsible for these kinds of debts.

But what happens when we are talking about a second marriage. Or alternatively a marriage that happens later in life. When this occurs, you’re usually taking two individuals who had separate lives prior to their marriage that may include their own substantial debt and ownership of assets. When this occurs, the question is does the couple own these assets jointly or are they still separately own assets. Additionally, are the debts associated with these assets joint or separate? 

Keep in mind that the question for this particular article is am I responsible for my deceased spouse’s debts? The answer to this question then really depends on the type of probate that is being completed and the transfers that will occur when a spouse dies. 

The purpose of a regular probate is to make sure that all the debts and expenses of the deceased person are taken care of first. Second, once all debts are resolved, then the purpose of probate is to transfer the remaining money, property, and other assets that belonged to the deceased spouse to whoever they are supposed to go to. This is determined by a written last will and testament, or if no Will exists through the laws of intestacy. 

If a husband and wife had been married for a long time and purchased all their assets together, and the husband dies, then usually what happens is the wife simply continues to pay those debts and expenses the same as they were paid when the husband was alive. However, if we are talking about a second marriage where the husband had his own separate debt prior to the marriage, but his will says all his assets go to his surviving wife, then that debt must be paid and resolved before the wife can receive the deceased husband’s assets. If this does not happen, and the wife receives all of the husband’s assets, the wife then will be responsible to pay that debt. 

The reason for this is simple. The wife receives the money, property, or other assets of the deceased husband. The creditor can require the wife to pay the total amount of a debt so long as it is not more than the assets she received from the deceased spouse’s estate. In other words, the wife will not be responsible for any shortfalls so long as she has paid the equivalent value to the creditor of all assets she received from the deceased husband. 

A Summary Administration probate, or would I like to call a “speedy probate” is a little different. This type of probate is unique because it is only available to a surviving spouse. Additionally, it’s only available when we are talking about the fact that all of the property that was owned by the deceased spouse and the surviving spouse is community property. 

The benefit of this type of probate is that it is speedy. A normal probate has to stay open at least six months after the personal representative is appointed. However, the Summary Administration probate can be completed usually within 10 to 30 days. Not only is it faster, but it is also much less expensive to complete. However, there is a trade-off. 

The statutes allowing a Summary Administration probate for a surviving spouse specifically require the spouse to accept and be obligated to pay all of the deceased spouse’s debts. The decree that is entered by the court specifically states this. 

This is usually not a big deal because again we are talking about a community estate. In other words, normally, the surviving spouse is already personally responsible for all the debts that exist in the community estate. Because of this, it is usually no big deal for the surviving spouse to have a decree entered by the court saying that they will be responsible for all of these debts. 

In summary, the answer to the question of whether a spouse is obligated to pay their deceased spouse’s debt, depends on the type of the state that existed between the spouses when they were both alive. Additionally, it also depends based on whether the surviving spouse is receiving all the money, property, and other assets from the deceased spouse. Finally, it also depends on whether the surviving spouse is doing a regular probate or the Summary Administration probate. 

If your spouse has recently passed away and you have questions about probate, debts, or any other things, we encourage you to contact us for a free 30-minute consultation where we can answer your questions and help give you peace of mind about what needs to happen. We have assisted numerous clients through this process, and we are confident we can help you too! 

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.