“In sickness and in health” . . . these words are part of most wedding vows, and caring for our spouses when they fall ill, including when they become frail and elderly or suffer from dementia, is something most married couples plan to do. They just don’t necessarily plan on having it bankrupt themselves and their family. However, in most states, the medical bills of one spouse can in fact involuntarily bankrupt the other spouse because of the law known as the “doctrine of necessaries.” And in 30 states, the medical bills of one or both spouses can cause financial devastation for their children as well, due to “filial responsibility laws” where adult children have a duty to provide necessities for parents who cannot do so for themselves. (This will be discussed later in this article!)
Throughout most of the country — about 40 states — the doctrine of necessaries says that spouses are legally and financially responsible for each other’s debts for expenses that were necessary, such as food, clothing, housing, medical care, and long-term care (such as in-home care, assisted living, and nursing home care).
What Is the Doctrine of Necessities?
More than three centuries ago, English courts developed the doctrine of necessaries as a means of enforcing a husband’s duty to support his wife. The law, which is still active in about 40 states, used to only apply to women, as a woman’s only legal means of enforcing her husband’s obligation to support her. But over the years, most of these forty states that still have the doctrine of necessaries have made it apply to both spouses equally.
According to the doctrine of necessaries, as long as the marriage exists, the financial resources of both spouses should be available to pay a creditor who provides necessary goods and services to either spouse. Some states provide an exemption if the spouses are legally separated.
Until a recent change in Virginia, these were the Doctrine of Necessaries rules in the DC Area:
District of Columbia: The doctrine of necessaries applies equally to both spouses and to domestic partners. Either spouse or partner may be held liable for a debt incurred by one of them or their dependent child for necessaries.
Maryland: The Maryland Court of Appeals abolished the doctrine of necessaries.
Virginia: In Virginia, as already explained, the doctrine applies to both spouses so long as the parties are not separated.
If a couple moves from the DC area after retirement to another state, or if a spouse receives health care in a state other than that of his or her residence, the couple will be confronting the laws of their new state of residence relating to liability for necessaries, or of the state where the health-care provider is located.
To learn more about the doctrine of necessaries law and its history, please read my article “This Virginia Law Makes It A MUST to Do Medicaid Planning for Married Couples.”
How the Law Has Changed
Effective July 1, 2023, Virginia’s doctrine of necessaries law changed.
- 55.1-202 of the Code of Virginia was amended and reenacted. As mentioned, spouses used to be liable for medical bills and other necessary expenses of each other. They still are, except now they’re not after one spouse dies. These are some of the things the amended law states:
- Liability shall not be imposed on one spouse for health care rendered to the patient spouse if he or she predeceases the non-patient spouse.
- A spouse shall not be responsible for the other spouse’s contract or liability to a third party, if such liability arose before or after the marriage.
- 8.01-220.2 of the Code of Virginia (Spousal liability for emergency medical care) was also repealed. It said:
On and after July 1, 1984, each spouse shall be jointly and severally liable for all emergency medical care furnished to the other spouse by a physician licensed to practice medicine in the Commonwealth, or by a hospital located in the Commonwealth, including all follow-up inpatient care provided during the initial emergency admission to any such hospital, which is furnished while the spouses are living together. For the purposes of this section, emergency medical care shall mean any care the attending physician or other health care professional deems necessary to preserve the patient’s life or health and which, if not rendered timely, can be reasonably anticipated to adversely affect the patient’s recovery or imperil his life or health.
What Is Filial Responsibility and How Is It Different from the Doctrine of Necessaries?
Filial responsibility typically involves adult children, whereas doctrine of necessaries generally applies only to spouses, though some states combine their statutes on these two different doctrines. Many adult children are delighted to be able to give back to their parents in whatever ways they can, as their parents did for them. But most children don’t plan on having to pay out-of-control medical bills and nursing home bills of their parents. However, in most states, the medical bills and long-term care expenses of a parent can in fact involuntarily become the financial and legal responsibility of their children because of the doctrine of “filial responsibility.” Thirty states have filial responsibility laws where adult children have a legal and financial duty to pay for medical care and long-term care of their parents.
Filial responsibility is defined as “laws that impose a duty, usually upon adult children, for the support of their impoverished parents or other relatives.” Many of these debts include nursing home bills and other long-term bills.
Health care costs are skyrocketing, and the senior population is growing and living longer. Filial responsibility court claims are one way health care providers can recoup their costs when out-of-control medical bills go unpaid. Please read my many articles on filial responsibility through the years!
Please note that filial responsibility was repealed in Maryland and DC. But it still exists in Virginia, and it is unknown whether the Virginia General Assembly has considered a similar bill as the one above that focuses on the doctrine of necessaries not applying after the death of a spouse.
Planning in Advance Is Still a Must
For married couples in states where there is a doctrine of necessaries in place and for adult children where filial responsibility laws are still active, the only way to make sure you do not fall victim to a support action is by planning ahead. Spouses and adult children need to be proactive regarding how their loved ones are financing their long-term care. Many families mistakenly assume that Medicaid will cover a loved one’s cost of long-term care once that loved one has depleted his or her savings and other resources. But Medicaid does not only look at the assets of the nursing home spouse; rather, Medicaid looks at the assets of both spouses, regardless of how they are titled. It’s also a huge mistake to assume that Medicaid will be easy to obtain.
Medicaid laws are the most complex laws in existence, with eight separate bodies of law (four at the Federal level and four at the state level) dealing with Medicaid and Medicaid eligibility. To do proper Medicaid asset protection planning, families need the help of an experienced Elder Law attorney, preferably a Certified Elder Law Attorney, such as myself. If you or your spouse is over 65 or suffering from any sort of serious health condition, the best time to do Medicaid Asset Protection planning is now. Whether you or your spouse are years away from needing nursing home care, already in a nursing facility, or somewhere in between, the best time to plan is now, not when you are about to run out of money, and certainly not after you have run out of money.
If you have not done Incapacity Planning, Long-Term Care Planning, or Estate Planning (or had your Planning documents reviewed in the past three to five years), now is a good time to plan and get prepared!
Please contact us whenever you are ready to ensure that you have the appropriate level of planning:
Northern Virginia Elder Law Attorney: 703-691-1888
Fredericksburg, VA Elder Law Attorney: 540-479-1435
Rockville, MD Elder Law Attorney: 301-519-8041
Annapolis, MD Elder Law Attorney: 410-216-0703
About Evan H Farr, CELA, CAP
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