Marriage and the Texas Doctrine of Necessaries

Hidden deep in the bowels of the Texas Family Code is an innocuous little statute that can bankrupt both spouses of a marriage.

The statute provides that each spouse has a duty to support the other one.  If someone provides a “necessary” to a spouse and hasn’t been paid, then it is the duty of the other spouse to pay for it.

How does this work?  Suppose the wife has to go into the hospital.   The hospital will look first to her for payment.   If she doesn’t pay the bill, then the hospital will look to her husband.    In legal parlance, they are both jointly and severally liable to the hospital for payment.

That seems logical, especially since we are in a community property state.  Most people assume, however, that only their community property is on the line,  and that their separate property (inheritance, gift, prize money) is safe from a spouse’s debt.   As a general rule, a spouse’s separate property is not subject to the debts of the other spouse.

Not so fast.  ALL of a person’s non-exempt property, even separate property,  is subject to the statute.  A post-nuptial agreement that divides property between the spouses won’t protect it from a creditor for “necessaries.”   Some legal commentators even  think that a pre-nuptial agreement won’t provide any protection.

That’s very concerning for an aging population, where the costs of caring for an elderly spouse can be overwhelming.

Which brings up the question  – what is a necessary?   Medical and dental,  certainly.   Groceries and airline tickets, possibly.   Clothing, maybe.  A 2011 Fort Worth case held that one spouse’s  legal bills incurred during a divorce were a necessary, and her  now-ex-husband had to pay them.

There is one absolute  loophole – if the ailing spouse has qualified for Medicaid nursing care, then the other spouse is no longer liable for that cost.

The law is referred to as the Doctrine of Necessaries.