Expert Q&A: Debt Collection After Spouse’s Death
By Erica Sandberg
August 8, 2011
My husband recently passed away, and I received a call from a collector for some unpaid debts he has on an old card. The credit card was his before we married, and my name isn’t on it. But the collector made me feel like I should pay the balance anyway, even though it’s not mine. What should I do? I really can’t afford to pay the balance on my own, and I’m afraid a collector’s going to call again and I won’t know what to say. — Cynthia
Please accept my condolences on your husband’s passing. That you are receiving scary collection calls so soon after losing him must be terrible.
I doubt that you can be held responsible for his old credit card debt, but I can’t say with absolute certainty. Much depends on state law. In most cases, liabilities incurred before marriage (especially on a credit card that is not at all associated with you) would be pulled from his separate estate, but not from your combined or personal assets. However, if you live in a state that has community property laws on the books (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), complications might arise. To know for sure, contact a consumer rights attorney in your area.
If you discover that you do not have any obligation to pay — and I don’t think you do — it’s time to learn about the Fair Debt Collection Practices Act (FDCPA). The collector may be violating this federal law, which prohibits debt collectors from using abusive, unfair or deceptive practices to collect money. Your state’s law may offer even further protection.
As my bankruptcy lawyer colleague, Jeena Cho, confirms, debt collectors will often say whatever they feel is necessary to get you to pay — even if they know they can’t legally collect or sue. Some even go so far as to swear at people, call constantly or at odd hours and threaten jail or physical harm. None of these actions are permitted. Here’s what we think you should do if, in fact, you don’t own the debt:
First, send a letter to the collector. “Under FDCPA and/or state law, you have the right to demand they cease calling you and to only communicate via writing,” says Cho. So, write a letter with what you want (them to stop contacting you), making sure it contains all the relevant information, such as the account number and your address. Send it certified mail, return receipt requested. Keep copies for reference, as some debt collectors have very selective memories.
When they receive your letter, they won’t be able to contact you again, unless it’s a notice saying they’ll be taking you to court. That’s why it’s important to verify that the debt is not yours to pay.
If the collector calls again before you send the cease and desist letter, feel free to answer once more, but tell them firmly that the account is not your responsibility, you know your rights under the FDCPA and that you will not be taking their calls again. You are not obligated to answer or to speak, so save yourself the aggravation and don’t.
And if they tramp on the law and harass you? You can file a complaint against them with the Federal Trade Commission. While Cho points out that the recovery is fairly low — just $1,000 per violation — that action can make you feel better and more powerful, which is always a good thing.