Often, we come across clients who, when dealing with the death of their spouse, learn that their spouse owed a lot of debts to different creditors. Are you responsible for your deceased spouse’s debts? This article explains the debts that a surviving spouse would be responsible to pay on behalf of the deceased spouse.
Takeaways:
- Married persons have the right to buy, sell and control property as if they are unmarried.
- Husband is not responsible for the contracts and liabilities signed by the Wife and Wife is not responsible for the contracts, obligations, liabilities of the Husband.
- The surviving spouse will be responsible for the debts of the deceased spouse when:
- Surviving spouse personally agreed to pay for the spouse’s contract.
- Emergency medical care payments whether you signed the contract or not.
- Payments for “necessaries”.
- Property owned as tenants by the entirety is not subject to the other spouse’s creditors’ claims.
Married Persons’ Rights in Property
In Virginia, married persons have the right to acquire, control, and dispose of property as if they are unmarried. Coupled with this right is that the property of either spouse is not subject to the debts and liabilities of the other spouse. Moreover, married persons have the right to contract and be contracted with and sue and be sued in the same manner and consequence as if they were unmarried.
The result of this is that a creditor may only come after you or your property if the debt that is due is in your name only. If a creditor gets a judgment against you, typically they will seek to attach a lien to your property. This is valid if the property is held solely in your name.
Exceptions to General Rule
In some situations, Virginia does require that a spouse be jointly and severally liable for a debt incurred by their other spouse.
First, if you sign a contract in which you personally agree to pay for goods or service provided to your spouse, you will be responsible for paying any unpaid bills owed by your spouse. It does not matter if the goods or services were intended to be entirely for your spouse; if you sign as a “guarantor” of a contract, you are responsible to pay for those goods or services if your spouse is not able to pay.
Second, by law you are responsible to pay for emergency medical care provided to your spouse that remains due and owing, regardless of whether you agree to do so or not. Emergency medical care is defined as any care deemed necessary to preserve your spouse’s life and health which, if not rendered timely, can be reasonably anticipated to adversely affect your spouse’s recovery or imperil their life or health.
Third, even if you do not agree to such in writing, you are responsible to pay for any goods and services that are “necessary” to your spouse. Necessaries include anything that is “proper and useful for the sustenance of human life” and is often construed broadly depending on the standard of living that you and your spouse enjoy. The doctrine of necessaries may open you up to liability for debts incurred by your spouse for both emergent and non-emergent treatment, among other “necessaries” under state law.
Finally, it is important to know what you are responsible for if you and your spouse own property jointly. If you and your spouse own a marital home as tenants by the entirety, your spouse’s creditor cannot attach a lien to the marital home to settle a debt owed solely by your spouse. However, if both you and your spouse owe a debt to a single creditor, a judgment lien can then attach to the marital home. A common example of this is a mortgage, which is typically in the name of both spouses.
It is important to know these exceptions in the event your spouse passes away. If the debt that your deceased spouse accrued falls within these exceptions, you may be responsible for your de.
As you can see, there are many different rules pertaining to what property a creditor may come after to satisfy an unpaid debt. To determine how to best navigate your current financial situation, we highly recommend talking to an experienced estate planning and administration lawyer. We serve families living in Virginia, the District of Columbia, and Maryland. Call us today at 703-558-9311 to schedule your free consultation with us or click here to fill out our contact form and we will give you a call.