Must You Pay Your Spouse’s Debts? Current Application of the Doctrine of Necessaries in New York

Must You Pay Your Spouse’s Debts? Current Application of the Doctrine of Necessaries in New York

4.5.2023

By Damien Bosco

People aged 65 and older represented 16% of the population in 2019 but are expected to grow to be 21.6% of the population by 2040.^[1] As a result, there is an increase in medical debt.^[2] And with an increase in debt per household,^[3] many clients ask and are worried if they will be responsible to pay the debts of their spouse.

This can happen during a marriage when one spouse fails to or is not able to pay their own debts or when the spouses are in the middle of a divorce. And this can also occur when a creditor attempts to contact a surviving spouse to personally pay the debts of the pre-deceased spouse.^[4]

When it comes to creditors’ claims, practitioners generally understand that a spouse could be responsible to pay the other spouse’s debts if the money was used for a necessary service during the marriage. Most understand that necessaries would generally include medical debt. However, there are nuances when courts apply the law to make a determination when a non-debtor spouse must pay the debtor spouse’s debts.

As applied in New York, the doctrine of necessaries is a common law doctrine propounding that a spouse is responsible to pay certain debts of the other spouse when the other spouse borrows money to pay for, or uses on credit, essential goods and services that a third party provides.^[5]

The question is, what debts of one spouse is the other spouse responsible to pay? It can depend on whether the purpose of the debt is to pay for essential goods and services (necessaries), the ability to pay of both spouses and whether the creditor considered the non-debtor spouse’s credit.

Essential goods and services or necessaries are not specifically defined. Case law does show or indicate that medical debt could be deemed necessaries.^[6] And case law and some statutory provisions address when a spouse would have to support the other spouse or pay the other spouse’s legal fees.^[7]

An important factor is whether the debtor spouse had assets sufficient to take out the loan originally, still has the ability to pay and whether the creditor based the original loan on the non-debtor spouse’s credit. Consequently, applying the doctrine of necessaries does not mean that in all circumstances the non-debtor spouse must pay the other spouse’s debt.

A reasonable interpretation of case law shows that a creditor needs to show that (1) the debt was for an essential product or service; (2) the debtor spouse does not now have funds to pay the debt; (3) the creditor provided the loan only after taking into consideration the credit of the non-debtor spouse; and the non-debtor spouse has the ability to pay.

Although case law does not specifically say so, basing a loan on the credit of the non-debtor spouse could be evidenced by a lender using the credit rating or financials of the non-debtor spouse as part of a credit check before making the loan to the debtor spouse. A written guarantee would have to be honored. However, this does not mean the non-debtor spouse has to sign a guarantee to be responsible to pay the debt.

A creditor most likely would attempt a summary judgment motion in its favor based on the undisputed fact (as alleged) that the creditor took into consideration the credit of the non-debtor spouse, while the non-debtor spouse would argue that it is a matter of fact that the creditor must prove at trial. If the debtor spouse no longer has the ability to pay and the creditor attempts to collect or file suit against the non-debtor spouse, the non-debtor spouse most likely would argue that a creditor must prove or show that it offered the original debt based on the credit of the non-debtor spouse.

What Have New York Courts Said About It? Selected Cases in New York in the Court of Appeals

In Garlock v. Garlock, a case decided in 1939, the issue was whether a husband must support his wife.^[8] The Court of Appeals held that marriage imposes a duty upon the husband to support and maintain his wife in conformity with their current standing of living as a married couple. The court espoused that the “duty rests upon the husband to support his wife and his family, not merely to keep them from the poorhouse, but to support them in accordance with his station and position in life.” ^[9]

Although not directly referring to the doctrine of necessaries and the requirement that a husband pay the debts of the wife, the Garlock court appeared to support the then widely held belief that a husband financially supports his wife while the wife provides support in other ways during the marriage.

Almost 50 years later, in 1988, the Court of Appeals in Lichtman v. Grossbard was asked on appeal to consider the issue regarding the doctrine of necessaries as applicable to a wife supporting a husband based on the equal protection clause of the constitution.^[10] However, the court did not rule on the matter. The Court did refer to what it called the common law rule that a husband must pay for the necessaries of his wife, but was not able to rule on its converse, stating that issue “was not preserved for our review.”[11]

It appears that the Court of Appeals has not addressed the issue directly in recent years. However, the First, Second and Third Departments have had some cases addressing the doctrine of necessaries, although not completely covering all aspects of it. The Second Department’s line of cases provides more detailed analysis. And there appear to be no direct applicable cases in the Fourth Department.

Highlight of a First Department Case

In a case from 2020, the First Department laid out elements that a plaintiff/creditor would have to establish under the doctrine of necessaries. In Jopal Bronx, LLC v. Montilla, the court denied a nursing facility summary judgment against the community spouse (non-debtor spouse) for not paying the debtor spouse’s bill.^[12] The court held that the plaintiff nursing facility did not establish any of the elements to sustain a cause of action. The court held that the plaintiff failed to show (1) that it provided care to the defendant’s husband based on the defendant’s credit; (2) that the community spouse could afford to pay for her husband’s care: or (3) that her husband was unable to pay for the debt from his own resources.^[13]

Generally, the first step is to determine if the debtor spouse actually has the money to pay the debt before filing a claim against the non-debtor spouse based on the credit or ability to pay of the non-debtor spouse.

Highlight of Second Department Cases

The most recent case addressing the doctrine of necessaries in the Second Department is from 2016. In Jones, LLP v. Sitomer, the Second Department set forth what a creditor must do to collect from the non-debtor spouse under the common law doctrine of necessaries.^[14] The court held that a spouse who receives necessary goods or services is primarily liable for payment. The court stated that a creditor seeking to recover a debt against the non-debtor spouse must (1) demonstrate that the primary debtor was unable to satisfy the debt out of his or her own resources; (2) that necessaries were furnished on the non-debtor spouse’s credit; and (3) that the non-debtor spouse has the ability to satisfy the debt.^[15]

One Second Department case from 1992 is significant for its discussion of the details of the application of the doctrine of necessaries. In Medical Business Associates, Inc. v. Steiner, the court found, inter alia, that the spouse who received the necessary goods or services should be primarily liable for payment.^[16] Also, the court held that a creditor seeking to recover a debt against the non-debtor spouse has the burden of demonstrating that necessaries were furnished on the non-debtor spouse’s credit and that the non-debtor spouse has the ability to satisfy the debt. The court stated that proof that the services were furnished in reliance on the credit of the other spouse, as well as proof as to each spouse’s financial status and ability to pay, was necessary.

The court espoused that

“[t]he doctrine [of necessaries] 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.^[17]”

A Third Department Case

In a notable 1992 Third Department case, the court held that there was a rebuttable presumption that a creditor has looked at the credit of the non-debtor spouse. In Our Lady of Lourdes Memorial Hosp., Inc. v. Frey, the court denied the creditor’s summary judgment motion.^[18] The court said that the plaintiff did not meet the burden to prove that it looked at the credit of the non-debtor spouse prior to providing necessaries to the debtor spouse.

Interestingly, the court laid out in effect what steps a creditor would need to take. The court stated that with respect to seeking payment for bills, it [a creditor] looks first to the patient’s insurance, then to the guarantor listed on the admission forms, then to the patient and, only as a last resort, to the patient’s family.^[19]

Conclusion

With our aging population and an increase in medical debt, as well as an increase in debt per household, the doctrine of necessaries will continue to come into play to determine if one spouse is obligated to pay for the other spouse’s medical services. Also, application of the doctrine of necessaries can extend beyond medical bills to legal fees and possible other types of debts that courts have yet to rule upon.

The basis of analysis is not only to determine if the debt is for an essential good or service but also whether the debtor spouse has the ability to pay, whether the creditor took into consideration the non-debtor spouse’s credit when deciding to provide the loan for the good or service, and whether the non-debtor spouse has the ability to actually pay the debt. Further application of the doctrine of necessaries could require practitioners to conduct additional analysis to support their clients’ cases.

Damien Bosco is an of counsel attorney in New York City with a background in business law, commercial litigation, and trusts and estates. He has a JD from Brooklyn Law School and an MPA from Harvard University’s John F. Kennedy School of Government.

^[1] See 2020 Profile of Older Americans, Administration on Aging, May 2021, https://acl.gov/sites/default/files/aging%20and%20Disability%20In%20America/2020Profileolderamericans.final_.pdf. The Administration on Aging is part of the Administration for Community Living, an operating division of the U.S. Department of Health and Human Services,

^[2] See 1 in 10 Adults Owe Medical Debt, With Millions Owing More Than $10,000, Kaiser Family Foundation, March 10, 2022, https://www.kff.org/health-costs/press-release/1-in-10-adults-owe-medical-debt-with-millions-owing-more-than-10000.

^[3] See Household Debt Rises to $16.90 Trillion; Credit Cards Pass Pre-Pandemic High, Federal Reserve Bank of New York, Center for Microeconomic Data, Household Debt and Credit Report (Q4 2022), https://www.newyorkfed.org/microeconomics/hhdc.html.

^[4] Some creditors attempt to collect from a spouse or family member not because of a premature distribution from the estate but because the estate is insolvent.

^[5] The doctrine itself has its basis in English common law going back to the Middle Ages.

^[6] See Medical Business Assoc., Inc. v. Steiner, 183 A.D.2d 86 (2d Dep’t 1992) (holding in part that the common-law doctrine of necessaries, which imposed liability on the husband to third parties who provided essential goods and services, included medical care and treatment, to his wife and children).

^[7] See Powers v. Pignarre, 34 A.D.3d 243 (1st Dep’t 2006) (holding that appellant’s legal fees in the underlying litigation are properly viewed as necessaries of her then-husband). See generally Domestic Relations Law § 237, Counsel fees and expenses; see also Family Court Act § 412, Married person’s duty to support spouse.

^[8] 279 N.Y. 337 (1939).

^[9] Id. at 2.

^[10] 73 N.Y.2d 792 (1988).

[11] Id. at 794.

^[12] 206 A.D.3d 426 (1st Dep’t 2022).

^[13] Id. at 1.

^[14] 139 A.D.3d 805 (2d Dep’t 2016).

^[15] Id. at 2.

^[16] 183 A.D.2d 86 (2d Dep’t 1992).

^[17] Id. at 94.

^[18] 183 A.D.2d 994 (3d Dep’t 1992).

^[19] Id. at 995.