Are you liable for late spouse's card debt?When collectors call, know who's responsible -- and your rights
Dear Opening Credits,
My husband died in July -- no
will, no estate. He had a credit card, in his name only, with a balance of
approximately $7,300. I live in Texas. His credit card company is harassing me for
payment. Is this my debt, and can it affect my credit score? -- Kim
Dear Kim,
First, please accept my condolences
about losing your husband. It hasn't been very long since he has passed, and I
can imagine that the agitating phone calls you are receiving are worsening
an already difficult time.
So what are your rights, and what can
you do to stop the collection activity? I contacted family law attorney Ken
Raggio of Dallas and asked him whether you could be held responsible for
payment on your late husband's personal credit card.
Because you did not provide a lot of
detail about your situation, Raggio is only able to offer some general
information, but it should help nonetheless: "If she sign the contract with the credit card company, and she never charged on
the credit card, then the money owed should come solely out of his estate. If there is no estate, they get nothing."
However,
you say that your husband died leaving no estate (money or property that would
be distributed to loved ones, family members and creditors after death),
so that leaves the question of whether the credit card company can pursue you
for payment. The answer, says Raggio, is that they probably cannot. "For the
company to force a collection from her, they would first need to prove that the
debt was community debt for necessities, which may be very difficult. They must establish liability to Kim other than by the fact of her marriage. Texas law is clear on this issue." (Ken goes into greater depth on liability for spouses and children on his firm's website.)
Because it is up to the credit card company to demonstrate clearly
that you are responsible for payment, throw the ball back into
their court and ask them to provide you with hard evidence that you owe the
money. If they can verify that any portion of that $7,300 is, in fact, yours,
then yes, they can expect you to pay that sum. However, if they can't, they
must let the matter go.
What if they still try to collect when they offer no proof
and you definitely don't owe the money? Since the debt is still with the
original creditor and not with a collection agency, you are shielded from
unfair collection practices under state law. Using phrases such as "I'm recording this call of you trying to collect an invalid debt" or "You are participating in a deceptive trade practice" may stop them. If not, either speak with a lawyer or
contact your state's attorney general for information about the precise consumer
protection laws for Texas.
Know though that state law closely mirrors the federal
Fair Debt Collection Practices Act, and some of its provisions apply directly
to your situation. For example, a collector may not call you multiple times a
day, as that is considered harassment. If you tell them to stop contacting you
altogether, they must. To do that, sit down at your computer -- or whip out a
pen and paper -- and write a letter to the credit card company. Summarize the
reason you are not legally accountable for the balance due, and tell them that
you expect them to end all contact. Make copies for your records, and send the
letter certified mail, return receipt requested. The only problem with this
"cease and desist" letter is that the next step the creditor can take is
legal action -- so you want to be sure that you are in no way liable for that
account.
About your credit file: If the debt is
not yours, it should not appear on your credit report. Not now, not ever. Check your credit reports from all three credit reporting bureaus. If you see your husband's
account, immediately dispute the item with the bureaus. You may have to offer
proof that the account had and has nothing to do with you, but it still should
be pretty easy to clear up.
I hope this provides you with some
sense of relief, Kim. Dealing with aggressive creditors is hard in the best of
times, but it can be agonizing when you're still grieving. Stay strong.
See related: 11 tips for dealing with debt collectors, Survey: Debt collection calls becoming more aggressive, Know your rights: About the Fair Debt Collection Practices Act, Debt collection sample letters
Erica Sandberg's articles and insight are featured in such publications as the Wall Street Journal, Pregnancy, Babytalk, Redbook, Bank Investment Consultant, Prosper.com, MSNMoney.com, and Smartmoney.com. An active television and radio commentator, Erica is the credit and money management expert for San Francisco’s KRON-TV, a frequent guest on Forbes Video Network, Fox Business News, Businessweek-TV, and all Bay Area networks. Prior to launching her own reporting and consulting business, she was affiliated with Consumer Credit Counseling Services of San Francisco where she counseled individuals, conducted educational workshops, and led the media relations department. Erica is a member of the Society of American Business Editors and Writers, and on the advisory committee for Project Money.
Send your question to Erica.
Published: February 3, 2010
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