Legal Question in Credit and Debt Law in Virginia

Re: Is wife liable for Credit Card CASH ADVANCE is husband dies?

Wife would not be personally liable for this, except, depending on the facts, to the possible extent of an unjust enrichment claim. However, the estate would be liable, and all estate claims have to be paid before any assets can be distributed to heirs.

Re: Is wife liable for Credit Card CASH ADVANCE is husband dies?

In Virginia, the law is clear that the estate of the decedant is liable for his debts before any anyone can inherit anything from the property that passes into his estate. I would add that not all of the property interests of the deceased are necessarily tied up in the estate. Whatever property the husband and wife owned together as married people ("tenants by the entireties") is the sole property of the surviving spouse immediately upon the death of the other. It used to be that there was a difference in real property law and personal property law as to that issue, which distinction has been abolished in Virginia by statute. Tenancy by the entireties is sort of like a mini-corporation: neither spouse owns the property during the marriage, because the T by E property is owned by the marriage itself. When one spouse dies, the marriage is destroyed, legally, and all rights immediately vest in the surviving spouse.

Property owned as tenants by the entireties can only be reached by creditors of joint debts - it is not available to pay creditors of either spouse on his sole debt or liability.

See Vasilion v. Vasilion, 192 Va. 735, 66 S.E.2d 599 (1951), cited with approval in zillions of subsequent cases, most recently by the Fourth Circuit Court of Appeals for the United States in

In Re Bunker, 312 F.3d 145 (4th Cir. 2002); see also Caine v. Freier, 264 Va. 251, 564 S.E.2d 122 (2002); further, quoting the Virginia Supreme Court case of Rogers v. Rogers, 257 Va. 323, 326, 512 S.E.2d 821 (1999):

We have stated, clearly and without equivocation, that real property held as tenants by the entireties is exempt from the claims of creditors who do not have joint judgments against the husband and wife. Vasilion v. Vasilion, 192 Va. 735, 740, 66 S.E.2d 599, 602 (1951). We discussed this elemental common law principle in Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984):

"It is settled that tenancies by the entirety are based upon the same four unities that support joint tenancies, that is, the unities of title, estate, time, and possession. However, it is also settled that tenancies by the entirety are supported by a fifth unity which they do not share with any other tenancy: the unity of marriage. That unity embodies the legal fiction that husband and wife are one. And it leads to the result that neither husband nor wife can by his or her sole act defeat the survivorship interest of the other spouse. Neither spouse can by separate act make an absolute disposition of property they hold as tenants by the entirety, nor can a judgment lien creditor of one spouse subject that property to the satisfaction of his lien."

Accord Pitts v. United States of America, 242 Va. 254, 258 -59, 408 S.E.2d 901, 903 (1991).

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