How Do I Resolve Charges By a Deceased Former Spouse for a Joint Credit Card Account?
Full Question:
Answer:
You may have a claim for imposition of a constructive trust upon the estate property in order to prevent unjust enrichment of the property owner. It may also be possible that the charges were in violation of the terms of the divorce decree. It is likely that any claim you have to being indemnifed for the charges would be based on equitable principles of fairness, since you are likely liable for the charges as a joint account holder under contract law principles .
Unjust enrichment occurs when a person unfairly gets a benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. A person who has been unjustly enriched at the expense of another must legally return the unfairly kept money or benefits. Unjust enrichment is an equitable doctrine applied in the absence of a contract and used to prevent one person from being unjustly enriched at another's expense.
Five elements must be established to prove unjust enrichment:
1. An enrichment;
2. An impoverishment;
3. A connection between the enrichment and the impoverishment;
4. Absence of a justification for the enrichment and impoverishment; and
5. An absence of a remedy provided by law.
Constructive Trust: Law & Legal Definition.
A constructive trust is a legal concept created by the courts against one who, by fraud, wrongdoing, or any other unconscionable conduct, either has obtained or holds legal right to property which he ought not to, in good conscience, keep and enjoy. A constructive trust is used to prevent unjust enrichment. Unjust enrichment is present in nearly every case where a constructive trust is imposed. However, it is not necessary for the court to findthat the person whose property is subjected to it has acted wrongly in order to impose a constructive trust, but may be based upon a finding of unjust enrichment arising from other circumstances that "render it inequitable for the party holding the title to retain it."
The basis for creating a constructive trust is to prevent unjust enrichment. (Restatement of Restitution § 160, comment c.) "Where a person wrongfully disposes of property of another knowing that the disposition is wrongful and acquires in exchange other property, the other is entitled to enforce a constructive trust of the property so acquired." If the property so acquired is or becomes more valuable than the property used in acquiring it, the profit thus made by the wrongdoer cannot be retained by him; the person whose property was used in making the profit is entitled to it." (Restatement Restitution § 202.) When property is given or devised to a defendant in breach of a donor's or testator's contract with a plaintiff, equity will impose a constructive trust upon that property being held by another even though (1) the transfer is not the result of breach of a fiduciary duty or an actual or constructive fraud practiced upon the plaintiff, and (2) the donee or devisee had no knowledge of the wrongdoing or breach of contract.
You have probably heard of debt relief companies. There are also some companies, even credit card companies, that will work out a compromise settlement or reduced monthly payment. Family and friends are also sometimes options. There is really no good answer to your problem, a problem that many people face. Thus options include but are not limited to bankruptcy, debt relief company, compromise you do yourself, friends, family, loans. I suggest you resolve the charges before a lawsuit is filed to collect the money owed, which may further damage your credit history.
Please see the following TX statutes:
§ 298 PROB. CODE. Claims Against Estates of Decedents
(a) Time for Presentation of Claims. A claim may be presented to the
personal representative at any time before the estate is closed if suit on
the claim has not been barred by the general statutes of limitation. If a
claim of an unsecured creditor for money is not presented within four
months after the date of receipt of the notice permitted by
Section 294(d), the claim is barred.
(b) Claims Barred by Limitation Not to Be Allowed or Approved. No
claims for money against a decedent, or against the estate of the
decedent, on which a suit is barred under Subsection (a) of this
section, Section 313, or Section 317(a) or by a general statute of
limitation applicable thereto shall be allowed by a personal
representative. If allowed by the representative and the court is
satisfied that the claim is barred or that limitation has run, the claim
shall be disapproved.
§ 308 PROB. CODE. Depositing Claims With Clerk
Claims may also be presented by depositing same, with vouchers and
necessary exhibits and affidavit attached, with the clerk, who, upon
receiving same, shall advise the representative of the estate, or the
representative's attorney, by letter mailed to the representative's last
known address, of the deposit of same. Should the representative fail to
act on said claim within thirty days after it is deposited, then it shall
be presumed to be rejected. Failure of the clerk to give notice as
required herein shall not affect the validity of the presentment or the
presumption of rejection because not acted upon within said thirty day
period. The clerk shall enter a deposited claim on the claim docket.
§ 314 PROB. CODE. Presentment of Claims a Prerequisite for Judgment
No judgment shall be rendered in favor of a claimant upon any claim for
money which has not been legally presented to the representative of an
estate, and rejected by the representative or by the court, in whole or
in part.
