Are you liable for late spouse's card debt?
When collectors call, know who's responsible -- and your rights
By Erica Sandberg | Published: February 3, 2010
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
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
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