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Trusts & Estates Law/What to pay first with deceased spouse monies


My husband passed away after being sick for less than a year. He never did estate planning. I now have creditors calling to collect for credit card debt on top of paying for funeral services. In what order do I allocate his remaing funds?

I'm sorry about your husband's death.  The answer to your question depends on whether the debts would be considered "separate property" debts of your husband or "community property" debts of both of you ... It also depends on whether he had "separate property" assets or "community property" assets.... as a general rule, anything that the 2 of you acquired while you were married (including debts) would be considered "community property" and anything you owned before you were married would be "separate property" unless you "commingled" it.  In addition, any gifts or inheritances that your husband received (whether before or after marriage) would be his "separate property" unless you "commingled" it.

It might be in your best interests to file a probate action.  That way, the creditors have a limited period of time in which to make a claim, and in many circumstances they would not be able to collect from you personally (depending on how the probate is done).

I'm sorry to be vague, but the rules are different in different circumstances.  If there's a probate, then the debts have a specific priority under the California Probate Code and you aren't even allowed to pay "lower priority" debts until the "higher priority" debts have been paid in full (see: - particularly 11420(a) subsections 1 through 7).


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Janet Brewer


BE CAREFUL about taking legal advice from non-lawyers.

I am a licensed attorney in California. I am available to answer questions about probating estates, preparing wills and trusts, administering estates and trusts, forming family limited partnerships and limited liability companies, and establishing a wide variety of estate and gift tax-sensitive trusts (charitable trusts, children's trusts, irrevocable life insurance trusts, etc.).

I can also answer questions regarding the preparation of estate tax returns (Form 706) in taxable estates. Please note that I do not prepare trust income tax returns and cannot provide you with any information about that type of return.

Please note: I am only able to practice law in the State of California. I cannot answer specific questions about other states' laws; I can only provide some "general" information that may or may not apply to your situation.


I have practiced California estate, gift-planning, and probate law exclusively since 1991. I am certified as a specialist in estate planning and probate law by the California State Bar Board of Legal Specialization (there are less than 125 such specialists practicing in Santa Clara County and fewer than 7,000 practicing in California - out of over 170,000 lawyers statewide).

I have served as an Instructor in the CFP (certificate in financial planning) program at University of California Santa Cruz, teaching the estate planning segment.

Silicon Valley Bar Association
Wealth Counsel
Wealth Advisors' Forum
Executive Committee Member, Solo and Small Firm Section of the California State Bar (appointed to a 3 year term by the California State Bar Board of Governors)

I received my law degree (J.D.) from University of Denver Law School in 1975. I was admitted to the Colorado Bar in 1975 and to the California Bar in 1977 (NOTE: although I am a member of the Colorado Bar, I am on INACTIVE status there). I earned an M.B.A. in 1982, and I earned a Masters Degree in Taxation Law (LLM) at Golden Gate University Law School in 2010 (with honors).

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Awards and Honors
2007, 2008, 2009, 2010, 2011, & 2012 - chosen as a "SuperLawyer" - one of the top 5% of Northern California lawyers practicing in the estate planning and probate area ( Avvo Rating of 10.0/10.0

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