When Can the IRS Pursue a Deceased Spouse’s Estate Without Probate?

Our income tax laws can be complex when applied to unique or varying fact patterns. This can result in tax liabilities. Tax liabilities can also arise when someone legitimately owest tax and simply does not pay it.

There are various collection remedies available for tax liabilities. These remedies often have the best outcome when there are factors that make a taxpayer unable to pay in full.

When a taxpayer can pay in full, it can be more difficult to find a resolution for the balance other than payment–either payment directly or over time. Given that the IRS is so inefficient in collecting tax balances, many taxpayers take a wait and see approach. They are often waiting to see if the IRS will bother collecting at all.

But what happens when the taxpayer dies during this waiting period? What happens to the tax balance? For example, can a surviving spouse just not open a probate administration for their spouse and continue to avoid the liability?

The recent United States v. Estate of Whittemore, No. 24-cv-11492 (D. Mass. Dec. 16, 2025), case gets into this question. The court had to decide whether the IRS can pursue estate assets when no probate was opened, no executor was appointed, and the surviving spouse explicitly denied serving in any representative capacity.

Facts & Procedural History

The taxpayers were husband and wife. They filed joint federal income tax returns for tax years 2008 through 2014. The returns reflected their combined income, deductions, and tax liability.

The Whittemores’ returns showed unpaid federal income tax liabilities totaling $241,600.04 as of April 29, 2024. During the IRS tax collection window in 2017, Mr. Whittemore died. He did not have a last will and testament. Under Massachusetts intestacy law, his property would pass to his heirs by operation of law.

No probate proceeding was ever opened for Mr. Whittemore’s estate. Mrs. Whittemore did not petition the probate court to be appointed as personal representative, executor, or administrator. She simply continued living her life as the surviving spouse, acquiring her late husband’s assets by virtue of being his sole heir under state law.

On June 27, 2024, the United States filed a complaint seeking to collect the unpaid taxes. The Government named two defendants: the estate and Mrs. Whittemore. The complaint alleged that Mrs. Whittemore should be sued both individually (for her own liability on the joint returns) and in her representative capacity as the de facto executor or administrator of her late husband’s estate.

In the tax litigation, the Government then filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The motion asked the court to find that Mrs. Whittemore was the de facto executor, administrator, or representative of the estate for purposes of tax litigation. The Government argued she was the proper party to be sued in that capacity and that she had waived any challenge by failing to respond separately as the alleged representative.

Mrs. Whittemore opposed the motion and filed her own cross-motion for judgment, asking the court to declare that she held none of the representative roles alleged by the Government.

Joint and Several Liability on Joint Tax Returns

When married couples file a joint federal income tax return, both spouses are generally jointly and severally liable for the entire tax shown on the return. Joint and several liability means the IRS can collect the full tax debt from either spouse–regardless of which spouse actually earned the income or incurred the deduction. This rule applies to the tax itself, as well as interest and penalties that accrue.

The joint return creates a single tax liability that belongs to both spouses equally. If one spouse earned all the income while the other earned nothing, both are still fully liable for 100% of the tax owed. The IRS doesn’t have to split the debt or allocate it based on who contributed what income. It can simply pick whichever spouse has more assets and pursue that person for the entire amount.

These rules continue even when one spouse dies. The surviving spouse remains personally liable for the full amount of any unpaid taxes from joint returns filed during the marriage. The deceased spouse’s liability doesn’t disappear at death either. Instead, it becomes a liability of the estate.

What About Innocent Spouse Relief?

Fortunately for surviving spouses, the tax code provides a potential remedy. Under Section 6015, a spouse can request innocent spouse relief to avoid liability for tax, interest, and penalties on a joint return. If the IRS grants relief, the requesting spouse is no longer liable for the debt attributable to the other spouse.

The rules for innocent spouse relief depend on which subsection applies. Traditional innocent spouse relief under Section 6015(b) requires showing that the return had an understatement of tax, the understatement was attributable to erroneous items of the other spouse, and it would be inequitable to hold the requesting spouse liable. Separation of liability relief under Section 6015(c) allows a spouse to allocate the understatement between the spouses based on which spouse’s items created the deficiency. Equitable relief under Section 6015(f) is a catchall that can apply when the other forms of relief don’t fit.

A surviving spouse can request innocent spouse relief just like any other spouse. The death of the other spouse doesn’t eliminate this option. In fact, the death might strengthen the surviving spouse’s case for relief. After all, the deceased spouse is no longer around to pay the debt and may not have a representative appointed to contested the innocent spouse application.

But this is not a complete remedy when a spouse dies. Innocent spouse relief only protects the individual spouse who requests it. It doesn’t eliminate the estate’s liability for the same tax debt. Section 6015 allows “a spouse” to be relieved of liability. It doesn’t provide relief for estates. The statute contemplates that a living individual is seeking relief, not a deceased person’s estate.

This distinction means that, if Mrs. Whittemore was afforded innocent spouse relief, she would no longer be personally liable for the $241,600.04 debt. The IRS couldn’t levy her bank account, garnish her wages, or file a lien against her personal assets. But the estate would still owe the money. And if the estate had sufficient assets to pay, the IRS could pursue those assets to satisfy the debt. Those may be the very same assets she has commingled with her own assets.

How Does Federal Tax Law Treat Estate Liability?

The tax law allows the IRS to pursue estates for unpaid taxes. This is found in the catch all provision in Section 7402.

Section 7402(a) authorizes district courts “to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws.” The First Circuit has described this provision as conferring “a full arsenal of powers to compel compliance with the internal revenue laws.” Brody v. United States, 243 F.2d 378, 384 (1st Cir. 1957). This language gives federal courts expansive power to help the IRS collect taxes that are owed.

The question is who the IRS can sue to enforce that liability. Normally, when someone dies, a personal representative is appointed through probate proceedings in the state or local courts. The personal representative (called an executor or administrator in Texas) is responsible for marshaling the estate’s assets, paying its debts, and distributing what remains to the heirs. Once appointed, it is clear that the IRS can sue the personal representative to collect unpaid taxes from the estate.

But what happens when no probate proceeding is opened? What if no personal representative is ever appointed? Can the IRS still pursue the estate’s assets and, if so, how?

The Statutory Definition of “Executor” Under Section 2203

Congress anticipated this problem. Section 2203 defines the term “executor” for purposes of estate tax administration. The statute says: “The term ‘executor’ wherever it is used in this title in connection with the estate tax imposed by this chapter means the executor or administrator of the decedent, or, if there is no executor or administrator appointed, qualified, and acting within the United States, then any person in actual or constructive possession of any property of the decedent.”

The last clause makes it clear that if there is no executor or administrator appointed, the term “executor” means “any person in actual or constructive possession of any property of the decedent.” This definition doesn’t require a formal probate appointment. It doesn’t require court supervision. It doesn’t even require that the person acknowledge being in possession of estate property. If you have the decedent’s property and there is no executor, you’re an executor for federal tax purposes.

Although Section 2203 is in the estate tax chapter of the tax code, courts have recognized that the definition extends to other taxes owed by the estate. They have said that this broad statutory definition applies to income taxes as well. Courts have consistently applied this definition to allow the Government to pursue tax liabilities against individuals who possess estate property even when they were never formally appointed. So when the IRS is trying to collect income taxes owed by a deceased taxpayer, it can sue anyone who meets the Section 2203 definition of executor.

Can Someone Be a De Facto Representative Without Knowing It?

Under Section 2203, possessing estate property is enough. You don’t have to know you’re considered an executor. You don’t have to accept the role. You don’t even have to believe the property is part of an estate. If you have possession of a deceased person’s property, you qualify as an executor under federal tax law.

The courts have reached this conclusion in several cases. In Estate of Gudie v. Commissioner, 137 T.C. 165 (2011), the U.S. Tax Court held that the niece of a decedent was the statutory executor because she was in actual or constructive possession of her aunt’s property and signed the decedent’s tax return. The niece hadn’t been formally appointed by any court. She simply had access to her aunt’s assets after her aunt died.

In Sommer v. Commissioner, No. 4664-09S, 2010 WL 5395628 (T.C. Dec. 28, 2010), the U.S. Tax Court held a widow responsible for filing a joint return and remitting payment for federal income tax liabilities after her husband died. Again, no formal appointment was necessary. The widow’s possession of the couple’s assets was enough.

Similarly, in Guida’s Estate v. Commissioner, 69 T.C. 811 (1978), the U.S. Tax Court held that a surviving joint tenant who received the decedent’s jointly held savings accounts and real property was the statutory executor. The survivor was in actual possession of the decedent’s property, which made him an executor under Section 2203.

The First Circuit has also applied these principles. In United States v. McNicol, 829 F.3d 77 (1st Cir. 2016), the court affirmed summary judgment for the government in a case where the IRS sued an estate and a widow (both individually and as executrix) to reduce the estate’s unpaid federal tax liabilities to judgment. The case confirmed that the IRS has broad authority to pursue estates and their representatives, whether formally appointed or not.

These cases make clear that formal appointment isn’t required. If you possess estate assets, the IRS can treat you as the executor for purposes of collecting estate tax liabilities. This rule applies even when the person with possession explicitly denies being an executor and insists they hold no representative capacity.

In this case, under Massachusetts intestacy law, when all of a decedent’s descendants are also the surviving spouse’s descendants, the surviving spouse is entitled to the entire intestate estate. Mrs. Whittemore’s interrogatory responses confirmed that all of Mr. Whittemore’s descendants were also her descendants and that she was the sole heir. She acquired his assets at the time of his death.

Based on these facts, the court concluded that Mrs. Whittemore was “the person who actually or constructively possesses and controls the decedent’s property.” She therefore qualified as the estate’s de facto representative under Section 2203 for purposes of federal tax enforcement. The absence of a formal probate appointment didn’t matter. The court granted the Government’s motion for judgment on the pleadings against the estate and against Mrs. Whittemore in both her individual and representative capacities.

The Takeaway

Surviving spouses often assume that if they can avoid responsibility for their deceased spouse’s tax debts if they do not open or start a probate. This case shows that this assumption is wrong when it comes to federal taxes. The tax code defines “executor” broadly to include anyone who possesses estate property and courts have said that this applies to income taxes. A formal probate appointment is not necessary for liability to attach. Even explicit denials of representative status might not prevent the IRS from pursuing estate assets in the hands of the surviving spouse. This does not mean that the estate is without remedies, as the normal collection remedies may still be available to the probate estate.

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