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Am I Responsible for My Spouse’s or Parents Debts When They Die?

By Lane V. Erickson, Idaho Estate Planning Attorney

My job as an estate planning attorney is to help each of my clients understand the estate planning and probate processes that apply in Idaho and to answer all their questions and concerns. I don’t expect my clients to understand or know the law the way I do. Because of this, I find that I am usually answering questions that are fairly simple to me but seem to cause a great deal of concern and worry to my clients.

Because these types of questions do come up, I provide my clients with a free 30-minute consultation where I can answer all their questions and help them understand their options, and the things they need to know whether it is about estate planning or the probate process. During the probate consultation, I provide my clients with a diagram that walks them through the probate process and explains the timeline, the steps involved, and the things that need to be accomplished.

During the free estate planning consultation, I provide my clients with our free Estate Planning Questionnaire that they can download, type directly into, and save to their computer. Alternatively, they can print it out and hand write their information into the questionnaire. Either way, this gives my clients the ability to pull together the information they need so we can discuss their estate planning options and help them make decisions about what will work best for them, their family members and loved ones.

When it comes to the probate process, one of the biggest questions that comes up regularly is whether the individual who is appointed to be the personal representative, or the remaining family members, are responsible for the debts of the decedent after they die. This usually comes up within the context of a person doing a probate for their deceased spouse or for a deceased parent. Because these are different situations, we will discuss them separately below.

Idaho Community Property Presumption

When it comes to a deceased spouse, there are some specific laws that apply in Idaho. These are known as community property laws. Under the community property laws, there is a presumption that all the property and assets that are owned in the marriage are community property. This means that they are jointly owned equally between the husband and the wife.

Additionally, there is also a presumption that all debt that is owed is community debt. In other words, this means that the law presumes that both a husband and a wife are equally obligated to pay the debt in full. This means that while the spouses are both alive, the Creditor can collect from either or both spouses. This also means that when one spouse dies, the Creditor can still collect on the debt from the surviving spouse.

As a result of the presumption of community property and Community debts, the short answer is that if a person is doing a probate for a spouse, they likely will be responsible for the debts of their deceased spouse.

Dealing with Separate Debts

However, this is not always the case. Sometimes, if a marriage occurs later in life, or if it is a second or third marriage, the spouses will bring into the marriage their own debts. The easiest example of this is a credit card that a spouse brings into a debt that only has their name on the account.

When there is separate debt that is owed by the deceased spouse, the surviving spouse is not personally obligated to pay that debt. However, the estate of the deceased spouse is obligated to this debt. In other words, if the deceased spouse had any money or property that they wanted to go to their surviving spouse, say through a last will and testament, or a trust, or even through the laws of intestacy, those assets will have to be used to pay the deceased spouse’s debt first before any money or property can be transferred to the surviving spouse. In this way, the surviving spouse is still not personally responsible for the debt, but they must use the deceased spouse’s money and assets to pay that debt before they take those assets for themselves.

If there is separate debt, and the surviving spouse does not use the deceased spouse’s money and assets to pay it, then the surviving spouse could be responsible for paying the deceased spouse’s debt. But this would only be true up to the total value of the assets the surviving spouse took from the deceased spouse’s estate. In other words, if there was a $100,000 debt, but the assets in the estate were limited to only $50,000 in value that were transferred to the surviving spouse, then the surviving spouse would be obligated to the Creditor up to the amount of $50,000.

The Personal Representative’s Responsibilities

Now, let’s change the facts a little bit. Let’s assume that we are dealing with the estate of a deceased parent. Because there are no marital or community property laws that apply, the personal representative is not personally liable or responsible for any of the deceased parent’s debts. All the personal representative is required to do is to use the Assets in the deceased parent’s estate to pay the debts.

If there aren’t enough Assets in the estate to pay all the debts, then the debt simply disappears once all the estate assets are depleted. For example, using the same numbers listed above, if there are $100,000 worth of debts owed by the deceased parent, but the parent’s estate only includes $50,000 worth of value, that means the remaining $50,000 of debt simply goes away. The personal representative is not responsible to pay that debt themselves.

Again, we don’t expect our clients to understand all these rules and laws and how they apply to an estate. If you have questions or concerns about the debts of a deceased spouse or parent or someone else who has appointed you to be their personal representative, we can help. We have assisted numerous personal representatives through the probate process, and we are confident that we can help you too! Call us today for a free 30-minute consultation where we can answer your questions and help you better understand the probate process.


Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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