After the death of a spouse, the surviving spouse will inevitably receive bills from hospitals and rehabilitation facilities. Typically, these bills are sent in the name of the deceased spouse. Are you, as the surviving spouse, obligated to pay them?
The general rule in Virginia is that you are not responsible for your spouse’s personal debts. Furthermore, assets owned by a surviving spouse due to a right of survivorship are not subject to claims by creditors for debts owed by the deceased spouse. However, if a spouse signs a contract agreeing to pay for medical treatment provided to his or her spouse – often called a personal guaranty – the surviving spouse is responsible for paying the medical bills.
Virginia recognizes the common law “doctrine of necessaries,” which provides that, even if a spouse does not agree in writing to pay his or her spouse’s medical bills, an implied contract is created requiring a spouse to pay for “necessary” medical services provided for the other, unless the spouses are living separate and apart. Prior to July 1, 2023, this meant that, even if a surviving spouse did not agree in writing to pay his or her spouse’s medical bills, the spouse would be responsible for payment of any unpaid bills for necessary medical services after the death of the patient spouse. However, a statutory modification of the doctrine of necessaries, effective July 1, 2023, now terminates this spousal responsibility for payment upon the death of the spouse who received the medical care. While spouses continue to have joint and several liability for payment of necessary medical expenses while both spouses are living, the surviving spouse is no longer personally responsible for the payment of necessary medical care expenses after the death of the patient spouse. See Va. Code § 55.1-202.
It is not clear whether hospice care is covered by the doctrine of necessaries. If your spouse is being treated by physicians and nurses and receives medication or other palliative care at a rehabilitation facility, a strong argument can be made that the treatment is medically “necessary,” and that the non-patient spouse is responsible for payment for that care while the patient spouse is living. In any case, after the patient spouse dies, the surviving spouse’s responsibility to pay the hospice expenses is extinguished.
Similarly, prior to July 1, 2023, a spouse was personally responsible for the payment of “emergency” medical care provided to his or her spouse, which was defined as care provided during an initial emergency admission in order to preserve the patient’s life or health. However, the section of the Virginia Code that created this spousal liability, § 8.01-220.2, was repealed, effective July 1, 2023.
It is important to remember that, even though a surviving spouse is no longer required to use his or her own funds to pay a deceased spouse’s medical bills, medical providers can still seek recovery from the deceased spouse’s estate. Assets that are owned by spouses as tenants by the entirety or jointly with right of survivorship pass to the surviving spouse by operation of law at the death of the first spouse, and are not considered part of the deceased spouse’s estate. However, assets that were owned solely by the deceased spouse at the time of his or her death, and that were not designated as “payable on death” (POD) or “transfer on death” (TOD) to the surviving spouse, could be subject to recovery by medical providers for the payment of unpaid medical bills after the death of the patient spouse.
Whether or not you could be responsible for paying your spouse’s medical debts is heavily dependent on the particular facts surrounding your spouse’s care. While this article provides a general explanation of the law, it is always recommended that you consult with an experienced attorney for specific legal advice.