What Happens When You Have an Ex-Spouse as a Creditor in a Probated Will

By Brette Sember, J.D.

What Happens When You Have an Ex-Spouse as a Creditor in a Probated Will

By Brette Sember, J.D.

When a will is probated, all of the decedent's creditors have the opportunity to present their claims to the probate court so they can try to get paid what they are owed. One of these creditors could be the decedent's ex-spouse, who may be seeking reimbursement for debts owed rather than asking to be treated as a beneficiary of the will.

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Any creditor owed money by the decedent or the decedent's estate is required to file a claim with the probate court. Creditors, including ex-spouses, must provide proof of the debt in order to be paid from the estate. Creditors' claims are fully paid before the estate's assets are distributed to the beneficiaries.

Alimony Claims

One type of claim an ex-spouse could have is for alimony, which refers to court-ordered financial support after a divorce. Alimony ends at the death of either spouse, but claims for outstanding unpaid alimony are still owed and would come out of the estate. To file a claim, the ex-spouse must provide the court order and proof of the missing payments. The ex does not need a judgment that the decedent was in default: Proof that alimony was ordered and wasn't paid is sufficient.

Child Support Claims

Child support payments end at death, but claims for outstanding unpaid child support are still owed by the estate. To file the claim, the child support order and proof of the missing payments need to be provided by the ex-spouse. Child support is owed only to the parent, not the child, so only the parent can file the claim against the estate. As long as the parent can prove it was ordered and not paid, the parent does not need a judgment against the decedent for the unpaid child support.

Property Distribution

An ex-spouse might have a claim for marital property that was ordered to be distributed as part of the divorce but was not done so. Examples could be a bank account in the decedent's name, a car that the decedent held title to, or even items of personal property that were not transferred. The claim could also include a joint debt the decedent was ordered to pay and did not. The ex doesn't need to have a judgment of default, just proof—in the form of the divorce decree—that the property was to be transferred and proof that it wasn't.

Priority of Payment

Creditors' claims against an estate are paid in the order or priority set out in that state's laws. Child support claims generally are high priority over other creditors' claims, as are claims for property distribution and alimony payments. If the ex-spouse has a claim against the estate for any other reason—for example, the ex-spouse loaned the decedent some money—such a claim is treated as an unsecured loan and would be low priority among all the creditors' claims.

An ex-spouse's claims against an estate for child support, alimony, or property distribution are treated as a priority claim against the estate and, if proven, are paid out to the ex-spouse. If you are concerned about a spouse's possible claims or you have claims of your own, consider hiring an online service provider to guide you through the process.

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