Louise and Mark were married 50 years when Mark fell and broke his hip. Following hip surgery, Mark went to a nursing home for routine therapy. A previous stroke a few years before this had significantly weakened his body; thus, he was now unable to rally and achieve mobility again. For the past several years, Louise had physically and emotionally stood by Mark through a myriad of serious and even life-threatening medical issues following his stroke. Sadly, this final incident was the impetus for their physical separation and Mark would ultimately need skilled care in a nursing home. Unlike my pro-active clients and other regular readers, Mark and Louise had never even heard of Medicaid planning until she was luckily referred to me by the nursing home. Before coming to see me, she feared that she would be stuck privately paying all of Mark’s medical debt, including the $12,000 a month bill that the nursing home charges, and she knew that this would have depleted everything they have in less than 18 months.
According to the “doctrine of necessaries,” a law that is active in Virginia (Va. § 8.01-220.2), spouses have liability for the emergency medical treatment for the other, including follow-up care as long as they are not separated. In other words, as long as the marriage subsists, the financial resources of both spouses should be available to pay a creditor who provides necessary goods and services to either spouse.
History of the Doctrine of Necessaries
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, and 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. The doctrine survived into the 20th century in both common law (meaning court cases) and statutory forms.
After a 1983 Virginia Supreme Court decision found the doctrine of necessities to be unconstitutional for discriminating unfairly against the husband, the Virginia law was modified to make the doctrine apply to both husband and wife, unless they were “living separate and apart.”
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. 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. However, 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.
If one spouse is in a nursing home, is he or she considered “living separate and apart” from the other spouse?
To answer this question, I had to do some research on the definition of “separation” or living “separate and apart” in Virginia, in terms of divorce law. Separation, also known as “living apart,” occurs when a couple stops living together as husband and wife. If you or your spouse are in a nursing home, it is true that you are living “separate and apart,” but typically you still consider yourself to be a married couple. While parties are still legally married to each other and consider themselves to be together, state laws, including the Doctrine of Necessaries, generally require that they support each other.
Liability under the Doctrine of Necessaries
In Doctrine of Necessaries cases, the creditor has the burden of showing the necessities were furnished to the non-debtor spouse. To prevail under the Doctrine of Necessaries, most state courts require the provider of the necessary services or goods to show:
1. Services or goods were provided to the spouse;
2. Services or goods were necessary for the health and well-being of the receiving spouse;
3. The person against whom the action is brought was married to the person to whom the necessary services or goods were provided at the time such services were provided; and
4. Payment for the necessaries has not been made.
What if you are in a Different State?
These are the Doctrine of Necessaries rules in the DC Area:
District of Columbia: The Doctrine of Necessaries applies equally to both spouses and to domestic partners. Either spouse or partner may be held liable for a debt incurred by one of them or their dependent child for necessaries.
Maryland: The Maryland Court of Appeals has abolished the Doctrine of Necessaries.
Virginia: In Virginia, as already explained, the doctrine applies to both spouses, but only if the parties are not separated; if they were permanently living separate and apart prior to the event causing the medical bills and or nursing home bills to accrue, then neither can be held liable to a third party for the other’s necessaries.
When a couple moves from the Metro area after retirement to another state, or if a spouse receives expensive health care in a state other than that of his or her residence, the couple will be confronting the laws of their new state of residence relating to liability for necessaries, or of the state where the health-care provider is located.
What if You Have a Prenuptial Agreement in Place?
A prenuptial agreement will not assure that when one spouse moves into a nursing home, the other spouse is off the hook if the ill spouse’s resources run out. The ill spouse would typically need to apply for Medicaid at that point. However, the Medicaid program requires that the resources of both spouses be taken into account. Regardless of any agreement between them to the contrary, the application cannot be filed until the total pool of available resources is below a certain maximum.
Particularly in later-life second marriages, these issues need to be thought about. The main point is you cannot assume that your prenuptial agreement will supersede the requirements of the Medicaid program when it comes to a married applicant.
Medicaid Planning for Married Couples is a Must
For married couples in states where there is a Doctrine of Necessaries in place, the only way to make sure you do not fall victim to any support action is by planning ahead. Spouses need to be proactive regarding how their partners are financing their long-term care. Many families mistakenly assume that Medicaid will cover a spouse’s cost of long-term care once that spouse has depleted his or her savings and other resources. But you must remember that Medicaid does not only look at the assets of the nursing home spouse; rather, Medicaid looks at the assets of both spouses, regardless of how they are titled. It’s also a huge mistake to assume that Medicaid will be easy to obtain.
Medicaid laws are the most complex laws in existence, with 8 separate bodies of law (4 at the Federal level and 4 at the state level) dealing with Medicaid and Medicaid eligibility. To do proper Medicaid asset protection planning, families need the help of an experienced elder law attorney, preferably a Certified Elder Law Attorney such as myself. If you or your spouse is over 65 or suffering from any sort of serious health condition, the best time to do Medicaid Asset Protection planning is now. Whether you or your spouse is years away from needing nursing home care, is already in a nursing facility, or is somewhere in between, the time to plan is now, not when you are about to run out of money. Please don’t hesitate to call us at any time to make an appointment for an initial consultation:
Fairfax Elder Law Attorney: 703-691-1888
Fredericksburg Elder Law Attorney: 540-479-1435
Rockville Elder Law Attorney: 301-519-8041
DC Elder Law Attorney: 202-587-2797
About Evan H Farr, CELA, CAP
