The Doctrine of Necessaries: Your Legal Obligation to Care for Your Spouse
Attorney Jane Dearwester
The Doctrine of Necessaries originated in British common law, establishing a husband’s duty to provide for his wife. It also allowed a wife to secure household services and goods in the name of her husband, in the absence of a woman’s legal right to contract on her own behalf. The doctrine likewise considered that a woman’s contribution to the marriage was to “render services within the home” and to care for her husband and any children born of the marriage.
Prior to 1848, a husband could sell any marital assets without his wife’s consent. In 1855, women in North Carolina were permitted to serve as executor over their late husband’s estate. Women’s rights have continued to evolve over time to allow women to dispose of their property without the consent or permission of their husband (1911), to contract in their own right (1965), and hold their own bank account without the permission of a man (1974).
The modern form of the Doctrine of Necessaries applies in North Carolina to bind both spouses, regardless of gender, to provide for and be responsible for necessary expenses incurred during the term of a marriage.
North Carolina and the Doctrine
In 1987, North Carolina courts memorialized this common law doctrine and made it clear that it would be applied to both spouses moving forward, such that both spouses have the affirmative duty to provide for each other — expanding the historic duty of the husband to provide for his wife to also extend to a wife’s duty to provide for and be responsible for the debts of her husband. In North Carolina Baptist Hospitals, Inc. v. Harris, 319 N.C. 347 (1987), the North Carolina Supreme Court addressed and formally applied the Doctrine of Necessaries, and overturned the lower courts’ decisions, to order a wife to pay her late husband’s medical bulls pursuant to a lawsuit filed by the hospital to collect against her as the surviving spouse. The Court noted that pursuant to N.C.G.S. §14-322, which males it a criminal misdemeanor to “willfully abandon a dependent spouse (or child) without providing a that spouse with adequate support” that the duty of spousal support (and support of minor children) was not gender specific and should apply to both spouses.
What is "Necessary"
Several questions and legal issues arise in this context. What expenses are “necessary” under this doctrine? For example, if one spouse runs up thousands of credit card debt without the knowledge or consent of the other spouse, and then dies owing the debt, is the surviving spouse responsible for that debt?
First, the doctrine only applies to necessary expenses – which is defined as medical bills (doctors, hospitals, therapy, prescriptions, medical devices) and has been extended to include basic needs such as food, shelter, and funeral costs. In the case mentioned above, the Court gave the following insight regarding the judicial intent behind the application of the doctrine to protect medical providers:
Defendant contends that a gender-neutral application of the doctrine would be better accomplished by abolishing the doctrine of necessaries altogether. We see no reason to take this course. The doctrine has historically served several beneficial functions. Among these are the encouragement of health-care providers and facilities to provide needed medical attention to married persons and the recognition that the marriage involves shared wealth, expenses, rights, and duties. We conclude that the benefits to the institution of marriage will be enhanced by expanding rather than abolishing the doctrine of necessaries. Our decision is a recognition of a personal duty of each spouse to support the other, a duty arising from the marital relationship itself and carrying with it the corollary right to support from the other spouse. Id, at 475.
What is the Surviving Spouse NOT Responsible For?
Conversely, North Carolina Courts have held that a surviving spouse is NOT responsible for credit card debt or other consumer debt incurred by only the deceased spouse if the surviving spouse was not a co-signer or joint obligor of that debt. The doctrine is most often used and relied upon by medical providers to collect medical bills on behalf of one spouse against both spouses. It is important to note that spouses cannot waive their obligation under the Doctrine of Necessaries – as North Carolina Courts have invalidated pre-nuptial agreements that have attempted to waive the obligation of support between spouses. The theory is that the medical providers are third parties who are not in privity of contact with the spouses and their right to collect payment cannot be waived by a contract made between spouses.
McIntyre Elder Law Can Help
Strategic estate planning can shield spousal assets from attempts at collection from medical creditors – but again, in North Carolina, the Doctrine of Necessaries and the affirmative duty to support your spouse cannot be waived. Irrevocable trusts can limit the ability of medical providers to collect against a surviving spouse. In some instances, the only way to avoid collection by medical collectors is legal separation/divorce or bankruptcy of the surviving spouse. Spouses can also carry life insurance policies to provide for their surviving spouse if they are left owing medical debts due to expenses associated with end of life health issues. The Doctrine of Necessaries is a little known rule requiring spousal support that should be considered by any party who is contemplating marriage.
You should consult with your estate planning attorney regarding strategies to make sure that neither spouse is left destitute due to medical bills owed upon the death of one spouse.
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Attorney Jane Dearwester
Estate Planning & Elder Law Attorney
McIntyre Elder Law
Hendersonville, NC
