What Happens When You Have an Ex-Wife as a Creditor in Probating a Will?

by Beverly Bird

When a decedent names you as executor of his will, and if you accept that responsibility to probate his estate, you might be startled if his ex-wife comes forward with a claim against his assets. Provided that the decedent legitimately owed her money, the act of divorce doesn’t prohibit her from collecting it. In some situations, she may even have priority over the decedent’s other creditors.

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Creditors’ Claims

The decedent might have owed his ex-wife money for a variety of reasons. They may have maintained an amicable relationship, and she may have fronted him a loan when he found himself in a financial fix. However, it’s more likely that he owed her an equitable distribution payment according to their divorce terms, such if he was obligated to make a cash payment to her because he kept certain property. He might have been paying her alimony, or child support on behalf of their children, and he fell behind. The initial steps of probate treat these debts just like any other. His ex can make a creditor’s claim against the estate, requesting payment. Ideally, she’ll submit proof of the debt, such as a copy of the divorce decree, and bank or other records showing his lack of payment. If she doesn’t do so, you have the right to ask for such documentation. You must then decide whether you’re going to reject the claim because you don’t think it’s legitimate, or whether you’re going to pay the decedent’s ex what he owed her.

Priority of Payments

If the debt represents past-due alimony or child support, it usually has priority over all other creditor claims. You would most likely have to pay the decedent's ex-wife before paying his credit card debts or consumer loans. Depending on your state’s laws, this may also be the case if the debt is an equitable distribution payment. If the decedent owed his ex-wife money for any other reason, such as if she loaned him money out of the goodness of her heart, the probate process usually treats this just like another other unsecured loan.

Ongoing Payments

Legally, the decedent’s child is entitled to support until he reaches the age of majority. In reality, if the decedent didn’t provide for ongoing support by establishing a trust for his child, support often terminates by necessity with the parent’s death. No one remains alive to continue earning income with which to pay it, and probate of the estate will eventually become final and close. If the decedent's ex-wife makes a claim for child support going forward, confer with an attorney familiar with both probate and family law to learn your options. Many divorce decrees contain language stating that alimony ends when either spouse dies. If the decedent’s ex makes a claim for ongoing alimony, check the decree to find out if it bars her from doing so. Many decrees include provisions for life insurance to protect the receiving spouse from financial crisis when her ex dies. However, the insurance company would most likely pay the death benefits directly to the ex-spouse as the named beneficiary. You would not have any involvement with this as executor of the estate.

Lawsuits

If you decide to reject the ex-wife’s creditor's claim because you don't think it's valid, she has the right to file a lawsuit with the court, asking a judge to overrule your decision. In most states, she would do this in probate court. However, some states, such as California, allow her to file in small claims court if the debt is less than $5,000. If she wins, she can present the judgment to the probate court, even if you rejected it the first time around.