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Death of a spouse during a divorce

Discussion in 'Other Family Law Matters' started by Brandy Cart, Sep 4, 2019.

  1. Brandy Cart

    Brandy Cart Law Topic Starter New Member

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    My mom and dad were common law married since 1995 in Texas. They separated in October of 2015 and eventually decided to get a divorce. My father passed away in December, 2 days before his meeting with the lawyer to sign the final divorce paperwork. He has some assets such as land and a few motorcycles/dirt bikes, etc. He didn’t have much due to my mother screwing him over a few years prior, hence the reason they separated. He was in the process of paying off the IRS for back taxes he owed for nonpayment during a few years of work as a oil rig consultant. He ended up losing his home, and sold anything of value like vehicles, his boat and his airplane to pay down some debt. He did invest in burial insurance which wasn’t much but it covered his cremation. Whatever was left over went to my brother as he was the beneficiary. Sadly, he took my dads ashes, a check for whatever amount of money insurance paid out once the funeral home was paid and refused to have a proper memorial. He was also listed on my dads bank account so apparently he cleared out whatever nest egg my dad had saved up for his future and I haven’t spoke to him since. I ended up inheritaning a huge therapy bill, loss of work which eventually led to loss of employment and my dads two Beloved dogs. Side note, I am thrilled to have those dang dogs!! Anyways, my mother has been in and out of rehabilitation centers and hospitals since before my dads death. She is elderly and has fallen a few times breaking her back, hip and femur bone. She lives off a very small social security check which she has to pay her Medicare supplements out of. She has no money, no assets, nothing. My question is, does the debt owed to IRS now go to her? Is she responsible for paying it? If she is elderly and disabled will the state levy her social security payments? I have done some research and have came across some info stating that in Texas, some cases where a divorce is almost final, the judge can and will split the inheritance between their biological children and the spouse won’t get anything….including debt. Is this true?
    I’ve read some contradicting articles that have just confused me more than I was to begin with. One will say that even although Texas is community property state, it is not a community debt state which means that as long as the surviving spouse isn’t a co-signer on a debt they are not personally liable for it. Then a diff article will say that because Texas is a community property state, everything acquired during the marriage including property and even debt is considered both spouses responsibility. Because my father claimed my mom on his tax returns makes her liable for his IRS debt that she will in turn have to pay off. I came across one very hopeful reading stating that just because the Judge assigned to the divorce has not yet signed the final decree does not mean that the surviving spouse is still entitled to any benefits, inheritance or liable for any debt if they’ve gone through all the motions to get divorced. Any advice at all is so very greatly appreciated!! My mom doesn’t want any of my dads assets, property and certainly not his debt. Thanks for reading!!
  2. army judge

    army judge Super Moderator

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    Texas recognizes common law marriages IF, and ONLY IF, the couple do the following:

    Common law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas.

    Section 2.401 of the Texas Family Code states that a common law marriage may be proved by evidence that the couple:

    “agreed to be married”; and
    “after the agreement they lived together in this state as husband and wife”; and they
    “represented to others that they were married”

    If you want to prove a common law marriage, you have to show that all of the following have been met:

    You must show that you and your partner:

    are not already married, informally or formally, to anyone else at the time the marriage was created, AND
    both you and your partner were at least 18 years of age when the marriage was created; and
    you agreed to be married, AND
    afterward, lived in Texas as a married couple, and
    represented to others that you are married (“holding out” to others).

    You can't simply assert a common law marriage, the couple must have taken certain affirmative steps to create the "marriage without formalities".

    If you and your partner AGREE, you can sign a Declaration of Informal Marriage with the county clerk.

    The authorities told lies, didn't they.
    You DO have to ":formalize" your "informal" marriage. LOL :D

    Once signed, the declaration is valid proof of marriage and you are considered married for all legal purposes.

    The declaration form is available from the county clerk, where you must also FORMALLY file it.

    The only formalities it lacks is you need not acquire a marriage license (permission from gubmint to marry and money paid for the state for their blessing) and was further formalized by a state approved marriage officiant.

    If you are married in Texas, even by "marriage without formalities", you don't need to separate in contemplation of divorce; as Texas does NOT require (nor recognize) "legal separation" to divorce.

    The two people weren't divorced, rather the marriage was dissolved by DEATH of one spouse, your father.

    No adult child is required UNDER TEXAS law to pay any debts acquired by a deceased parent or relative.

    His surviving spouse should seek INNOCENT SPOUSE RELIEF for any IRS debt that may have been owed by her husband.

    The state can NOT touch her SS monies, even the IRS can only levy 15% of the IRS money she receives.

    His surviving spouse can AVOID the debt if she is proactive.

    She should seek INNOCENT spouse relief from the IRS.

    In Texas, not even the Republic of Texas can touch he IRS income, and no private creditor can get one penny of her SS monies.
  3. Tax Counsel

    Tax Counsel Well-Known Member

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    That makes it sound like he claimed her as a dependent on his return. That is not possible. Your spouse is never your dependent on your federal income tax return. Nor are dependents liable for whatever tax is owed on the return filed by the person who claimed them as a dependent. They either filed as married filing separately (which is not very common, especially in community property states, as there is rarely a benefit for doing so) or they filed returns as married filing jointly. If they filed as married filing separately they are each responsible for the tax on their own separate returns.

    But if they filed as a married filing jointly, as I suspect they did, then they each are jointly and severally liable for the tax on the return. That joint filing would explain why she owes the tax if the IRS is coming after her personally for payment.

    Even if they filed separately, the IRS would come after the assets he had when he died to collect that tax, so if she's holding those assets the IRS would look to her to cough up those assets to pay off the tax.

    Army Judge mentioned innocent spouse relief. That is relief from a joint income tax liability that is only available in certain situations. There are also two other potential forms of relief from joint income tax liability for spouses as well, separation of liability and equitable relief. Each of these three forms of relief have their own specific requirements that must be met for the relief to be granted. Most spouses will not qualify for any of them. However, if she meets the requirements for one or more of those forms of relief she certainly should apply for it. Information on all three forms of relief is provided in IRS publication 971. If there is a lot of tax owed here she may want to see a tax attorney for advice and assistance in dealing with it.

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