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P. Simmons
P. Simmons, Attorney
Category: Estate Law
Satisfied Customers: 26503
Experience:  12+ yrs. of experience including estate law.
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Customer Question

Is an estate in Texas reponsible to pay a debt if the debt was obtained illegally? In a divorce decree it is alleged that my brother agreed to pay back his ex spouse debt that she occured by receiving disability checks illegally. It is alleged that he profited by the checks and also used the money. Now that he is deceased she is seeking payment of that debt alleged in the decree. Thanks! Can that debt be voided or is voidable?
Submitted: 1 year ago.
Category: Estate Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Under estate law (in Texas as well as in all the other states), the estate of a deceased is required to pay out valid debts prior to distributing assets of the estate to the heirs.

What is a valid debt?

It is a debt that is legally enforceable.

So, for example, say that a A had a debt of $1000 to B. Say that this debt was incurred 1 year ago and was never paid. In such a case, if A dies, B can seek payment from the estate of A to satisfy the debt. If B can prove A owed the money, then the estate of A is required to pay the debt

Now...lets change the facts a bit. Lets say that the debt from A to B was incurred 5 years ago and that the agreement to pay was breached in the first year. Since the staute of limitations on contracts in TX is 4 years, the debt is past the statute of limitations. In this case, there is still a debt. But the debt is no longer enforceable...so in this case, if B tried to enforce against the estate of A, the executor should refuse to pay the debt.

In the case you describe? If the debt is not valid? It should NOT be paid.

If the alleged creditor attempts to collect, the executor of the estate can and should refuse to pay the debt. This would allow the alleged creditor to sue to try and enforce the debt...but if they can not prove the debt is valid, the court will NOT enforce the debt


Customer: replied 1 year ago.
Thanks. You stated the crux of the matter but it was not answered . Is the debt valid? His ex-wife obtained debt through illegal activities by receiving a disability check she was not intitle: to over a. Of time. She stated in the divorce decree that he would have to pay it back because she alleges he also profited by it . Now she is asking that the debt be paid by his estate. The old question is is that a valid debt because it was obtained through the legal matters. The new question is is the divorce decree considered to be a contract and is void after four years ? Thanks
Expert:  P. Simmons replied 1 year ago.
The divorce decree is NOT a contract. It never voids (unless the court voids it).

But I want to make sure I understand...the decree of divorce ordered this payment? Is that the payment you are attempting to be found invalid?
Customer: replied 1 year ago.
Allegedly yes. But can that be voided or voidable because her debt was obtained through the illegal activity. I guess another way to say it is can you assign a debt to someone in a divorce decree that was created by your own illegal activities. She claims he also benefited from the use of the money . Thanks
Expert:  P. Simmons replied 1 year ago.
So I want to make sure I understand...the court ordered this payment...but your point is the reason for this order from the court was not valid. That basically it was illegal activity that gave rise to the court issuing the order to pay...is that correct?
Customer: replied 1 year ago.
In the divorce decree, she requested that her ex husband be responsible for paying back a debt that she incurred when married by receiving disability checks that she was not entitle to. She alleged that he profited by the checks as well. So the boXXXXX XXXXXne question is can that debt in the decree be voided or is voidable because the original debt wasdue to her illegal activity. Thanks
Expert:  P. Simmons replied 1 year ago.
Thank you

These are two separate legal issues.

1. Can the underlying debt be voided

2. Can the decree of divorce be changed/voided (based on #1 or some other basis)

The underlying debt CAN be voided. Sure...if you can show that the underlying debt was not valid (since it was based on illegal activities) then you can void that debt. That is actually a fundamental principal of contract law (and debt is founded in contract law). Under contract law, agreements that relate to activity that that violates the law, or debts that come from activity that violates the law, can be voided. So the answer to #1 is easy. Yes. You can void the underlying debt (if you can show it was the product of an illegal activity)

But #2 is more complex.

Divorce decrees are difficult, and in some cases, impossible to modify. This is for legal and policy reasons. For good reason. If it was easy to do, then the court would be clobbered with requests to do just that.

In order to convince the court to change a decree of divorce you need one of two things

1. Both parties agree

or

2. Fraud on the court. If you can show fraud to the court (that one party lied to the court to get the change) that can be grounds to change the divorce decree.


This is complex since one of the parties is dead. But perhaps not impossible. To change the decree you would need to file a motion with the court (not the probate court but the family court) and ask for the change based on the lies of the party that obtained the order for payment.

But all this said, I am not sure you need to modify the decree...you just need to get the executor to agree that the debt is not valid. If you can do that, they have the power to not pay it.

So you can go to the family court to try and change the decree...but it may be a better use of resources to simply focus on the fraud behind the order and see if you can get the executor to declare that the debt is not valid.


P. Simmons, Attorney
Category: Estate Law
Satisfied Customers: 26503
Experience: 12+ yrs. of experience including estate law.
P. Simmons and other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.
Very good
Yes those are the answers I was looking for. Thank you

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