Responsibility for Necessary Expenses of Children and Spouses

7 July 2022

As a general rule, parents of minor children are legally responsible for the “necessary expenses” of those children, including medical expenses, under the “Doctrine of Necessaries” (sometimes called the Doctrine of Necessities).  Also, a spouse may be responsible for medical and certain other expenses of the other spouse.

Please note that, as a general rule, a spouse is not generally responsible for the debts of his or her spouse, and a surviving spouse is not responsible for the debts and expenses of a deceased spouse – unless they have co-signed or expressly guaranteed those debts.  Instead, the estate of the deceased spouse is responsible for paying those debts out of the assets of the deceased spouse’s estate, and the decedent’s spouse and family are not responsible.

However, there is an exception to that rule, which is an outgrowth of the old common law Doctrine of Necessaries, under which a husband was responsible for the debts and expenses of his wife.  Not surprisingly, that law has become outdated (and gender-neutral) for some time.  Current North Carolina law and the laws of many other states include somewhat similar rules, applicable to both spouses and limited to medical and other necessaries, such as nursing home care and funeral or cremation expenses.

This issue can arise while both spouses are living, such as when one spouse seeks to discharge his or her medical bills through bankruptcy but finds that both spouses are responsible for each other’s medical bills.  Perhaps more often, a surviving spouse may be personally liable for medical and funeral and burial expenses of a deceased spouse, if the deceased spouse’s estate does not have sufficient funds with which to pay those bills.

There is an exception to the current Doctrine of Necessaries when a married couple are legally separated, but only (1) if the spouses were legally separated at the time the services were rendered, and (2) the provider of medical services had actual notice of the separation at the time the services were provided.

Prenuptial agreements and postnuptial agreements can provide that one spouse shall not be liable for the debts of the other spouse, but those provisions would not necessarily provide protection from liability under the Doctrine of Necessaries, because medical providers are not parties to such an agreement and therefore the agreement would not be binding against a medical provider.

If you are anticipating a second marriage and are concerned about becoming liable for the debts and expenses of your second spouse, you can get a limited amount of protection through the use of such legal devices as irrevocable trusts, and you can address other such liabilities through life insurance, medical insurance and long-term care insurance.  If you are in need of legal advice concerning a spouse’s medical and burial expenses or other necessary expenses, please contact our law firm at (336) 725-2900.

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