I was recently asked to address the question of whether or not a surviving spouse is liable for a deceased spouse’s credit card debt.
Assuming this is a small estate and there is no probate estate or a trust holding assets, the following three questions need to be answered:
First, are you contractually liable for any of the credit card debts? If you and your spouse applied for the credit cards using your joint credit (applied for the card jointly), then both of you are liable for the debt. If one of you does not pay the debt, the other of you remains liable for the entire debt.
Second, are you liable for the debt as a result of receiving assets from your spouse? Ignoring jointly held accounts and accounts on which you were designated as the pay on death beneficiary, if your spouse had any assets in his or her separate name and you were able to acquire those by using a “Small Estates Affidavit” pursuant to California Probate Code Section 13100, then you are liable for their debts to the extent of the value of assets you received.
Third, are you liable for the debt due to your legal obligation to provide your spouse with the basic necessities of life? If some of the credit card debt was incurred to purchase food or provide medical care, it is arguable that you are liable for the debt to the extent the cards were used for that purpose. However, the reality is that a credit card issuer is unlikely to bother sorting out the purpose of each credit card purchase, so it is unlikely the issuer will pursue you for the debt based on the criteria that certain purchases were made for basic necessities.