Who Is Responsible if My Husband Owes Back Taxes & Dies?

by Erika Johansen

    If a spouse dies owing back taxes, the surviving spouse's responsibility for those taxes will depend on whether the tax return at issue was filed singly or jointly. If the taxes were filed jointly, the surviving spouse may be held liable to pay them, and her spouse's death will not change her tax liability.

    When a spouse files a tax return as an individual, he alone is liable to pay any tax due. Spouses often file jointly because they receive tax advantages by doing so. But the flip side is that each spouse can then be held liable for the entire amount due based on the joint tax return. This liability doesn't end even if the marriage dissolves; the law will still hold each spouse severally liable. Worse, if the tax payment is late, the individual spouses are also each liable for all interest and penalties on the back taxes.

    Because each spouse is held individually liable for taxes based on the joint return, the death of one spouse will not theoretically affect the surviving spouse's liability for back taxes. After the death, the deceased spouse's executor is responsible for filing final tax returns, and the government may attempt to satisfy any back taxes owed out of the deceased's estate. But depending on a state's legal protections for family of the deceased, a good portion of the deceased's estate may go to the surviving spouse anyway. It's likely that the surviving spouse will still be held liable for at least some portion of the back taxes.

    Sometimes a spouse is also an heir under the deceased spouse's will. The IRS won't hold heirs of the deceased liable for his back taxes; heirs are never obligated to pay those taxes. However, the deceased's estate itself is still liable for those taxes, which may impact the heirs. For instance, Joe leaves a will that gives his wife, Ann, 25 percent of his $1 million estate. Once the executor pays off creditors, funeral arrangements and all other estate debts, he must also pay the back taxes before giving anything to Joe's heirs. If Joe and Ann owed $300,000 in taxes, the IRS will go looking for those out of Joe's estate. Thus, the payment of back taxes may dramatically reduce Ann's share of the estate.

    Sometimes, one spouse has incurred a huge tax debt (for instance, by failing to report income) that the other spouse did not consent to and knows nothing about. This "innocent spouse" can apply for innocent spouse relief from the IRS. However, the innocent spouse must be able to prove the error on the joint return was entirely due to her spouse's omission, that she had no idea the tax owed was understated, and that joint liability would be unfair to her.

    About the Author

    Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.

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