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Generally, if one spouse passes away, the other spouse is not personally liable for their debts. If the deceased spouse’s creditors want to recover, they must make claims against the estate. If there is enough money in the estate, they will be able to recover the full debt. If there is not enough money in the estate, they eat the difference.


How are Medical Bills Different?

In a grave departure from logic, North Carolina has a turned a once reasonable legal doctrine into a financial trap for families. The Doctrine of Necessaries originated as a legal policy that sought to ensure that the husband cover at least the basic needs of the wife. This came about in an era where women did not have a large presence in the workforce, and they were financially dependent upon their husbands. Thus, wives were able to contractually bind their husband by incurring expenses they could not afford themselves.

The effect of this doctrine was that it essentially ensured that the wife could obtain food, clothing, shelter, and medicine (necessaries) and the provider of these necessaries would be paid, even though the wife could not do so herself. This doctrine made sense in a time where one spouse was the bread winner and the other spouse was the home maker. However, this doctrine is not only alive and well in this day and age, it’s also extends beyond the grave.

Under the Doctrine of Necessaries, the spouse is personally on the hook to pay medical bills and funeral expenses. This means that, even if there is no money in the estate to satisfy the claims of creditor, the spouse will still be personally liable to pay the medical bills and funeral expenses of the deceased spouse.

While the funeral expenses part makes some sense, it is patently unjust to allow medical bills to attach to the spouse in the same manner. This allows medical service providers to essentially leverage the love between the spouses to make as much money as possible. What person would deny their spouse the best level of care, just because they may have to pay more money in the future? The medical industry has special interest groups to ensure that they get compensated for their grossly overpriced services. Unfortunately, North Carolina has fallen prey to these special interests.


How do You Avoid This?

 One way around this doctrine is if the spouses were legally separated at the time the medical debt was incurred (when the services were provided)and the medical service provider had actual knowledge of the separation during that time. This is not the best way for happy couples to avoid personal liability for the other’s medical debt, for obvious reasons.

The best way to avoid this headache is some careful pre-planning. If you or your spouse have racked up or will rack up a large amount of medical debt, it may be in your best interest to do some planning with trusts. With the help of an attorney, it is possible to create an irrevocable trust to avoid these creditors from being able to reach your hard-earned assets.

If you have questions about how to avoid paying for your spouse’s medical debt, contact an Estate Planning and Elder Law attorney.


Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165


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To probate an estate in North Carolina, the Clerk of Court requires that the original copy of the will be filed. But important documents get lost all of the time. Wills can easily be lost in a move, destroyed in a casualty event (e.g. flood, fire, hurricane), or simply misplaced. So, what happens if your loved one dies, and you can’t find the will?


Safe Keeping 

It is first worth mentioning some suggestions to prevent loss or destruction of the original copy of the will. Many individuals like to keep their will in their home along with their other important documents. Sometimes it’s a safe, sometimes it’s a desk drawer, and sometimes it’s a shoebox under the bed. If you’re going to keep it in your home, you should have some safeguards. It should be in a place that is protected from theft, fire, and water damage. Thus, it may be worthwhile to invest in a fireproof safe. If you go the safe route, you should probably share the combination/key or its location to whomever you’ve named executor. I’d imagine it would be rather inconvenient to go all “Ocean’s Eleven” on a safe just to retrieve a will.

By the way, some people want the lawyer who drafted the will to keep the original copy in their office. This is not advisable. Law offices are subject to the same calamities as your own home. They also sometimes move locations and lose things.

Your best bet is probably a safety deposit box. These are kept in an area that is generally protected from all sorts of casualty events. Furthermore, it provides (literally) bank level security, mitigating the threat of theft. Also, you get to walk into the vault, which is pretty cool.


Only a Copy

Okay, so your loved one didn’t have the chance to read this article and their will was somehow misplaced, what now? Even though you only have a copy, the will can still be probated. However, it is a much more arduous process. Specifically, you must show the clerk sufficient evidence to demonstrate 4 things.


  1. The original will was properly executed.
  2. What the original will said.
  3. That the will in question was never revoked.
  4. That there was a diligent search for the original will—in the places it would most likely be found—and it was not found.


A copy of the will is going to help significantly in proving these four elements. Although, the clerk will most likely require witness testimony. Witnesses can be anyone who has knowledge of the contents of the will, either because they read it or it was read to them. Probably the best witnesses, however, are the witnesses that attested to the signing of the will or the attorney who drafted the will. 


No Copy, No Nothin’

If you don’t have so much as a copy of the will, or if the clerk refuses to accept the copy you have, there is still hope. The decedent’s estate can still be opened and probated. However, the distribution of assets won’t follow the terms of the will. The assets will pass through intestate succession. Typically, if you are an heir close to the decedent (e.g. wife, child) this method of distribution is not ideal, but it is still beneficial. If you are the only heir, it will be the same as if everything was left to you through the will.


What Should You Do?

If you’re having trouble finding the original or a copy of your loved one’s will, you should first look where they keep all of their important documents (read: that old hat box in their closet). Next, you should determine if they own a safety deposit box. If all else fails, seek the assistance of an attorney to determine how to further proceed.