Even death can't change the terms of the Internal Revenue Code. The Internal Revenue Service has its rules, and they're pretty much ironclad, regardless of whether a taxpayer is deceased or alive. In most cases, you're only responsible for your husband's tax problems when you file a joint return with him. This doesn't mean his back taxes won't affect you, however.
Your Husband's Estate
After your husband's death, someone must file his final tax return. The executor of his estate usually takes care of this because it's her responsibility to pay off his debts as part of the probate process. An executor typically checks with the IRS to make sure the decedent filed his previous years' returns and that any resulting taxes were paid. If they weren't, she must pay them from his estate in order to close it and settle his affairs. This could diminish any inheritances left to you or to other beneficiaries. The only way you would be responsible for filing your husband's return is if his estate is not submitted for probate, or if an executor isn't appointed before the tax due date, and you want to file jointly with him for his last year of life. If the job falls to you, you should also confirm his previous years' returns with the IRS.
Premarital Tax Debts
If it turns out that your husband does owe back taxes, your personal liability for paying them depends on two factors. The first hinges on when he incurred the debt. If the delinquent taxes are the result of returns filed before you got married, you're in the clear. Although his estate will have to pay the debt, you're not personally responsible. An exception to this rule sometimes exists in community property states, however. These states include California, Arizona, New Mexico, Texas, Nevada, Idaho, Washington, Wisconsin and Louisiana.
Joint Vs. Separate Returns
If your husband's back taxes relate to years during which you were married, but if they result from separately filed returns, you're still in the clear. When a spouse files a separate married return, he alone is responsible for the associated tax liability. If his unpaid taxes are the result of a joint married return, however, the entire tax debt falls to you when your husband dies. When spouses file a return together, they become "jointly and severally liable" for paying the taxes. This means you're each responsible for the entire debt. If your husband can't pay it, you must. If your husband's estate is solvent – there's enough money in it to cover all his debts and taxes – his executor can pay the old tax debt as part of the probate process, relieving you of the responsibility.
Community Property States
Tax laws become much more complex if you live in a community property state. In these jurisdictions, each spouse is responsible for claiming and paying taxes on half their joint incomes. For example, even if you earn little or no income in a given year, and even if you file a separate return, you must report and pay taxes on half the community income that your husband earned. You would be responsible for the taxes on this income after his death, assuming you didn't pay them at the time you filed. As far as collection is concerned, the IRS defers to state law, and the laws among these nine states vary. In some, the IRS can collect from all community property and assets, even your own 50 percent share, and even if the tax debt is premarital. In others, the IRS can only collect from your husband's share of marital assets, which would typically comprise his estate. If you live in a community property state, speak with a professional to find out just where you stand and what the exact laws are there.
- Legal Information Institute: 26 USC § 6013 – Joint Returns of Income Tax by Husband and Wife
- The Tax Law Offices of Frederick W. Daily III: Family, Friends, Heirs, and the IRS
- Fortenberry Legal: Death and Taxes
- IRS: Collection of Taxes in Community Property States
- The Florida Bar: Probate in Florida (PDF)
- Law Offices of Jeffrey B. Kahn: Frequently Asked Questions – Resolution of IRS Debt