Doctrine of Necessaries: Who Pays the Bill?

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.  This rule permitted a woman whose husband refused or neglected to provide for her to buy her necessaries on credit. The provider of necessities would be able to collect from the husband. The doctrine was regarded as a woman's only legal means of enforcing her husband's obligation to support her.  Thus, the doctrine survived into the 20th century in both common law and statutory forms.

 After a 1983 Virginia Supreme Court decision found the doctrine of necessities to be unconstitutional for discriminating unfairly against the husband, Virginia law was modified to make the doctrine to apply to both husband and wife, unless they were living separate and apart. 

 Husbands and wives are not responsible for paying debts incurred by only one party.   Unless a spouse has personally guaranteed that a debt will be paid on behalf of the debtor spouse, only the debtor is responsible.    Creditors cannot force the sale of a home owned jointly as “tenants by the entireties”, a form of ownership available only to married couples, to satisfy the debts of only one spouse.  Upon the death of the debtor spouse, his or her estate is responsible for settling the outstanding bills.

 However, another mid-1980’s Virginia law made spouses “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.”

 Several Virginia hospitals have unsuccessfully sued to try to force the healthy spouse to pay for inpatient medical care not related to emergency medical treatment.  In those same cases, where the treated spouse had died, and the surviving spouse was the executor of the estate, judges have ruled that the hospitals have a case against the estate.