San Antonio Express-News
October 7,  2003

Spousal Liability - and -
Probate Issues

copyright 2003, Paul Premack

There are different approaches available, depending on some factors you did not discuss in your question. For instance, do either of the houses have mortgages or other liens against them? Did your mother leave any other outstanding debts, including credit cards, medical bills or auto loans? Are the children cooperative or combative?

When your father died 12 years ago, did he have a Will or did he die intestate like your mother? If he had a Will, was it submitted to probate? If there is no probated Will, then the situation gets complex. He died in 1991, and the laws in effect at that time left his half interest in the houses to the five kids. You are many years beyond the legal timeframe for probate, so an affidavit of heirship will have to suffice for his estate.

Assuming the worst-case scenario – that he did not have a Will, that she died owing money to creditors, and that the children are not cooperating – then you should hire an attorney for an Administration and Determination of Heirship proceeding in your mother’s estate. The court will supervise each step of the way. Eventually you will obtain a court order decreeing who the owners are, so that the Administrator can either sell the houses to divide the money, or deed title to the owners so they can act like partners.

Assuming the best-case scenario – that he did have a Will leaving his share to your mother, that she had no creditors, and that the children are cooperative – then your attorney may be able to keep the estate out of court with an affidavit of heirship relating to your mother. Either way, my advice is that you see an experienced probate attorney without further delay.

Dear Mr. Premack: In Texas, is a husband responsible for his wife’s debts? My wife got sick and couldn’t pay her credit cards. They told me that I would have to pay because of community property laws. But I am not a co-signer on any of her cards, and we are not signers on each others’ bank accounts. – CRD

Under the Texas Family Code, your share of any community property is not subject to a liability that arises from an act of your spouse, except under a few circumstances. One is if your wife incurred the debt while acting as your agent (which is not the case that you present). Another is if she incurred debts for "necessaries" like food and shelter. I don’t know what she bought on credit, but if it was not a necessity then your share of the community property is not liable.

The separate accounts you maintain are called "sole management community property" and are not liable for her contractual liabilities (like credit cards) if you are not a party to the contract. If she commits a tort (like causing an injury in a car accident) then all the community property is subject to the liability. Her accounts are liable for her just debts, and may be subject to court order to pay those debts.