Property of the estate includes:
All interest of the debtor and the debtor’s spouse in community property as of the commencement of the case that is
11 U.S.C. 541(a)(2). This means that, even if only one spouse files a bankruptcy estate, in most instances the entire community property of the couple will be property of the bankruptcy estate. The corollary to this provision is that all creditors entitled to be paid from community property may file a claim against the bankruptcy estate even if the debtor spouse is not personally liable for the debt. In the latter instance, however, the claim is only entitled to be paid from the community property, not from the debtor’s separate property.
Note: The entire community comes into the bankruptcy estate even if one spouse files after marital status has been severed as long as the community property has not yet been divided. See In re Mante, 153 F.3d 1082, 1085 (9th Cir. 1998) (citing with approval In re Miller, 167 B.R. 202 (Bankr. C.D. Cal. 1994)).
Resources & Tools
TWO KINDS OF BANKRUPTCIES -- Individuals filing for bankruptcy choose one of two types, Chapter 7 and Chapter 13. Chapter 7, the so-called "straight bankruptcy," eliminates all dischargeable debt and stays on the debtor's credit report for 10 years, but the debtor emerges from the bankruptcy with a clean slate. Chapter 13 restructures debt so that the debtor takes a longer time to repay but he or she keeps some property, and it remains on the debtor's credit report for seven years.
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