Q. My husband and I live in Virginia and are currently looking into options for long-term care for my mother, since she has dementia and it’s getting worse. I recently learned about Virginia’s filial responsibility law from articles on your blog. Am I correctly understanding that under this law, if my mother can’t pay for her care that I, as her only child, would need to cover her debt? That’s a little frightening, since I’m trying to put two kids through college. I did hear though that the filial responsibility law in Virginia was in the process of being repealed. Can you please tell me more about filial responsibility and provide an update on the repealing of the law? Thanks for your help!
A. In a growing number of cases in the United States, adult children are being held legally responsible for their parents’ nursing-home or other care expenses. The reason is that more than half of U.S. states, including Virginia, have filial responsibility laws obligating adult children to financially support their parents.
These laws, which have mostly gone unenforced for decades, except for a handful of cases that we have highlighted in past articles, are reappearing in court cases as an aging population struggles with astronomical long-term care costs.
How Filial Responsibility Laws Came to Be
According to Katherine Pearson, professor at Dickinson Law at Penn State University, “(s)tate filial-responsibility laws can be traced back to 16th century English ‘Poor Laws,’ which created an obligation for financially able family members to support indigent relatives as an alternative to the newly established public welfare system.”
At one time, nearly all U.S. states had such laws. But starting in the 1960s, when Medicaid was created, some of the laws were repealed. Some facts about filial responsibility include:
- While the laws vary from state to state, they generally apply only when the parent is indigent and the adult child has some ability to pay.
- In many states, the laws won’t apply if the child can prove that the parent abandoned or abused the child.
- If the parent and child live in different states, courts will typically apply the filial-support law of the state where the parent lives.
- Depending on the state, filial-responsibility lawsuits may be filed by a family member, such as a sibling, or by a third party, such as a long-term-care facility that is owed money for the parent’s care.
Filial Responsibility in Virginia, Maryland, and DC
Virginia has a filial support statute that can obligate adult children to support their parents. The key language of VA Code Section 20-88 states that:
“It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.”
Virginia’s filial responsibility law was first enacted in 1920 and has since been amended more than a dozen times, most recently in 2009. The law imposes an obligation on adult children to provide for the support and maintenance of their parents if: (1) after reasonably providing for his own immediate family, the child has sufficient earning capacity or income, and (2) the parent needs financial assistance for support and maintenance, which of course includes medical bills and bills for long-term care.
Virginia’s filial responsibility law is one of the harshest in the country, because those found in violation of Virginia’s filial responsibility statute can face not only a civil lawsuit attempting to force the child to pay but also a criminal penalty of up to $500 and/or up to a year in jail. I am not aware of any cases where a county or city government has tried to use the criminal component of this statute.
Maryland repealed its filial responsibility law back in 2017. The District of Columbia does not have a filial responsibility law.
A Bill to Repeal Virginia’s Filial Responsibility Law Was Recently Introduced
Earlier this year, a bill to repeal Virginia’s filial responsibility law was introduced by Virginia Senator Adam Ebbin (D-Alexandria-Arlington-Fairfax), because the statute is rarely used and because of his belief that the statute can be misused and even abused. According to Ebbin, “(l)ots of adult children want to help their parents; they should do that because they want to not because they could spend a year in jail if they don’t.”
Sen. Ebbin described two real-life examples of when the law was taken advantage of in Virginia. For example, he says, a “brother who had run his mother’s finances into the ground, sued his sister for support of the mother.” In another case, Sen. Ebbin says “the law provided a forum for a stepfather to retaliate against his wife’s adult children for not supporting her when they didn’t want him to be her guardian.”
Ebbin described how the law was formed in the 1920s, when we didn’t have the same kind of social safety net that we have today. Now with Medicaid and Medicare and Social Security, it’s less important that seniors rely on their adult children for support.
What Happened with the Bill
Sen. Ebbin’s 2022 Senate Bill 389 to repeal Virginia’s filial responsibility law attracted strong bipartisan support in both chambers of the Virginia General assembly:
- The bill to repeal Virginia’s filial responsibility law passed unanimously in the Virginia Senate on Jan 28, 2022.
- The Virginia House of Delegates also passed the bill, on March 11, 2022, with 81 delegates voting in favor of repealing the filial responsibility statue, and only 16 members voting in opposition to the repeal.
- Timothy Anderson (R-Virginia Beach) stated that the section slated for repeal was still used in some bankruptcy cases. Anderson voted against sending the measure to committee but was alone among the eight voting subcommittee members in opposition.
- The full committee voted to add language to the measure that satisfied Anderson’s concerns, and the bill was passed 88-10 in the House of Delegates, sending the measure to a conference committee between the two houses.
- The committee recommended rejecting the House amendments, a decision that won passed on a 40-0 vote in the Senate and by an 81-16 margin in the House of Delegates, so Ebbin’s original bill went to Gov. Youngkin for action.
Virginia Governor Glenn Youngkin Vetoed the Repeal Last Month
Unfortunately, despite incredibly strong bipartisan support in both houses of the General Assembly, Virginia Governor Glenn Youngkin vetoed the repeal bill on April 11, 2022. His reasoning for preserving filial support laws is “explained” in the governor’s veto statement, which is extremely difficult to understand, and some might even say nonsensical. The governor claimed that “For those undergoing bankruptcy proceedings, there is a grave risk of unforeseeable and unintended consequences, which may harm people going through some of the most difficult times in their lives.” The governor seems to be implying that adult children going through bankruptcy could somehow shelter some of their own assets in order to use those assets to support their parents. But, if this is what the governor is implying, there is no legal support for this implication.
In an article on her Elder Law Prof Blog, Professor Katherine C. Pearson of Penn State’s Dickinson Law School states her opinion that there is no basis for a theory that Virginia’s filial support law permits some type of sheltering of assets for a debtor in bankruptcy court, to provide a means of financial support for the (also) destitute parent. professor Dickinson says “I find no modern cases on Lexis or Westlaw suggesting such use or even a need for such use.” Read her blog post here.
I will continue to keep our readers up-to-date about filial responsibility cases and provide any further updates on the filial responsibility law in Virginia.
Plan Ahead So You Don’t Fall Victim to Filial Responsibility Laws in Virginia
Unfortunately, filial responsibility laws are still alive in Virginia, and without proper planning, adult children may very well be on the hook for their aging parents’ care. So, as always, it’s extremely important to plan ahead to protect assets and obtain Medicaid, so that you do not fall victim to a filial support lawsuit. Once an individual is on Medicaid, and Medicaid is paying the nursing home bill, the nursing home can no longer go after adult children under Virginia’s filial responsibility law.
To do proper Medicaid asset protection planning, families need the help of an experienced Elder Law attorney, such as myself. Whether you or your parents are years away from needing nursing home care, already in a nursing facility, or somewhere in between, the time to plan is now, not when your parents are about to run out of money. Call us to make an appointment for an initial consultation:
Elder Law Attorney Fairfax: 703-691-1888
Elder Law Attorney Fredericksburg : 540-479-1435
Elder Law Attorney Maryland: 301-519-8041
Elder Law Attorney DC: 202-587-2797
About Evan H Farr, CELA, CAP
