Some people going through a sudden loss may wonder if they can file bankruptcy for their deceased spouse. Losing a spouse is emotionally and financially challenging, especially when debts remain. In most cases, a spouse is left with the responsibility of fulfilling the financial obligations of their late spouse. Many surviving spouses wonder if they can file bankruptcy on behalf of their deceased partner to clear outstanding financial obligations. We will go through the dos and the don’ts of how to handle debts left by a loved one.
Can You File Bankruptcy for a Deceased Spouse?
The short answer is no. Bankruptcy is a personal legal action, and once an individual passes away, they can no longer initiate or be the subject of a new bankruptcy filing. Here are a few reasons that help explain why:
- Bankruptcy Is Personal – The law treats bankruptcy as a personal financial decision. Since a deceased person can’t make legal decisions, they cannot file for bankruptcy, and no one can file on their behalf.
- Estate Takes Over the Debts – After death, an individual’s financial obligations become part of their estate. Creditors must file claims against the estate in probate court rather than through a bankruptcy process.
- Joint Debts and Liability – If you shared debts with your spouse, those obligations may still be your responsibility. However, any debts solely in your spouse’s name are typically addressed through probate.
- Fraud and Legal Issues – Attempting to file bankruptcy for a deceased spouse could be considered fraudulent. The court requires full financial disclosures, and since the deceased individual can’t provide them, the case would be dismissed.
Even though bankruptcy on their behalf isn’t an option, you aren’t without hope. There are other options available to you that could work for you.
How Debt Is Handled Through the Estate
When a person dies, their assets and liabilities become part of their estate. The estate goes through a legal process called probate, where a court ensures debts are paid before any remaining assets are distributed to heirs. The personal representative or executor of the estate must notify creditors and allow them to submit claims. Oklahoma law prioritizes certain debts, such as funeral expenses, taxes, and secured debts, before other unsecured obligations. Additionally, a probate will give creditors a deadline to respond to the Notice to Creditors called a Presentment Date. If they miss this deadline, they are barred from receiving funds from the estate.
If the estate does not have enough assets to cover all debts, it may be declared insolvent, meaning creditors will receive only what is available, and remaining balances are written off. However, this process does not affect joint debts or obligations personally guaranteed by the surviving spouse.
How a Surviving Spouse Can Handle Remaining Debt
Although you can’t file bankruptcy for a deceased spouse, you still have legal options for dealing with their outstanding debt. First, determine if the estate must go through probate. If your spouse had assets, creditors can attempt to collect from the estate before any inheritances are distributed. However, Oklahoma law provides protections for certain assets, including homestead rights and exempt personal property.
If creditors are contacting you about your spouse’s debts, it’s crucial to know your rights. In many cases, you are not personally responsible unless you co-signed or were a joint account holder. If necessary, you can consider your own bankruptcy filing to manage overwhelming financial burdens. Speaking with an experienced bankruptcy attorney can help you navigate your options and protect your financial future.
Wagoner County Bankruptcy Lawyers
Debts remaining after a spouse dies is a hard legal issue to face. Although you can’t file bankruptcy on their behalf, you do have options available to you that can help. Whether you go through a probate, or file your own bankruptcy to help with the debt, an attorney can help you through the process.
Our team at Wagoner County Attorneys are here to give you the answers you need to your debt issues. For a free consultation, call us today at 918-283-7394, or reach out to us on our Ask A Lawyer page.
