Does a California Surviving Spouse Have to Pay Her Deceased Spouse's Debt?

It is difficult when a spouse dies, but the difficulty is ramped up if the deceased spouse left behind debt. This article outlines the surviving spouse's obligation to pay her deceased spouse's debt under California law.

What Are Community Property Assets and Debts?

California is one of nine community property states. In a community property state, all assets acquired during marriage are community property unless the spouses agree otherwise in a prenuptial agreement. 

California Family Code section 760 provides:

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in this state is community property.

Just as the default characterization of assets acquired during marriage is that they are community property, so debts incurred during marriage are presumptively characterized as community debts.

California Family Code section 910(a) defines community debt:

Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt.

As an example, if the husband underwent surgery during marriage, his medical expenses would be community debts. If the husband made big purchases on a credit card during marriage, the debt would be community debt.

What Are Separate Property Assets and Debts?

In California, the only assets that can be separate property for a married couple are those a spouse acquired before marriage and those she inherited. But even these can become community property if they are commingled and not kept separate.

Likewise, debt incurred before marriage is separate property debt. If a spouse incurred credit card debt solely in his name before marriage, that debt is separate property debt.

Who Must Pay the Debts?

If the debt is a separate property debt, the deceased spouse's estate must pay it. The deceased spouse's estate includes his separate property and half of the community property.

However, if the debt is a community property debt, the surviving spouse is also responsible for paying the debt.

Statute of Limitations for Creditor Claims

California Code of Civil Procedure section 366.2 generally bars any action brought on a decedent's liability if filed more than one year after the decedent's death. 

If the estate goes through probate, California Probate Code section 9100 requires creditors to file their claim within four months of the date of death or 60 days after the executor sends them notice, whichever is later.

Probate and Trust Administration

The trust may be liable for claims and expenses of a probate administration. As explained in the California Education of the Bar treatise on Trust Administration:

Trustees have a duty to administer the trust according to its terms (California Probate Code §16000). Many trusts require trustees to pay the claims of the deceased settlor’s creditors. Even when the trust is silent on the payment of claims, the trust estate is liable to the deceased settlor’s creditors to the extent the deceased settlor’s probate estate is insufficient to satisfy the claims and the deceased settlor could revoke at the time of death. Prob C §19001(a). 

However, the trustee has no duty to creditors to pay claims before judgment. Rather, the trustee must pay judgments in the course of administration. Otherwise, distributees may be liable for the claims. Similarly, the trust estate is liable for probate administration expenses to the extent the probate estate is insufficient to pay those claims. Prob C §19001(a).

Conclusion

The responsibility of a California surviving spouse for her deceased husband's debts hinges on the nature of the debts and the California community property laws. If the debts are classified as community debts, the surviving spouse must pay them. Conversely, the surviving spouse will likely not be responsible for separate debts incurred before the marriage.