When you lose your spouse, the last thing you want to concern yourself with is who is going to pay his debts. If you live in a community property state such as Texas, however, a strong possibility exists that your property may be vulnerable to his creditors. Texas is a community property state, but its laws are somewhat less simplistic than other community property states. Creditors of the deceased can access a wide range of a decedent's property which might otherwise have passed to the surviving spouse, or the second to die.
Section 3.002 of the Texas Family Code defines community property as anything that spouses acquire or purchase during the marriage. It excepts separate property -- that which your spouse acquired before you married or received by way of an inheritance or a gift made to him alone. Community property law also addresses debts. Typically, both spouses are equally responsible for paying any liability incurred during the marriage, regardless of whose name is on the account. Texas courts may go a step beyond this general rule, looking at why a debt was incurred. For example, your spouse may have signed for a credit card on which every charge was for his personal pleasure, not the marital union. This rule typically comes into play in a divorce situation, but it can impact issues of a decedent's separate debts as well.
Read More: State of Texas Community Property Laws Regarding Income Taxes
Special Community Property
In addition to community property, Texas recognizes "special" community property. This is a somewhat complex concept, but it basically refers to who has control of marital property during the term of the marriage. For example, if you and your spouse purchase a rental property, but you manage it throughout your marriage, this is your special community property. If you're both hands-on with the property's management, it's "general" community property. This is an important distinction when it comes to debts left behind by a deceased spouse.
If your spouse dies, liability for community debt – that which you would otherwise have shared – typically transfers to you. His separate debts are another matter, however. Similar to separate property, separate debts are those your spouse incurred prior to your marriage. Your spouse's estate is typically responsible for these debts when he dies, so the question becomes what constitutes his estate and what portion of his estate is responsible for his separate debts. Creditors can access his separate property to pay his separate debts, but your separate property is typically safe from these liabilities. Your general community property is vulnerable, as is your spouse's special community property. Your special community property is usually safe, unless your spouse's separate debt was somehow incurred in the interest of your marriage. This might be the case if he contracted for a purchase immediately before your wedding, but you both enjoyed or benefited from the purchase while you were married.
Texas law protects your marital home from claims made by your deceased spouse's creditors. This is the state's homestead exemption, and it gives you the right to live there as long as you like, even if the house was your spouse's separate property. The law also exempts up to $60,000 of his personal property from creditor claims, and you could be entitled to an allowance from your spouse's estate – money to live on during the first year after his death. This allowance is also usually safe from his creditors' claims, but whether you receive it depends on the discretion of the probate court. If you have significant separate property of your own, the court can deny your claim for an allowance.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.