Last week, it was my pleasure to hear Tim Hall discuss some work he is doing on the doctrine of necessities and medical debt collection from spouses. Although coverture, the doctrine that a married woman's legal rights and obligations are subsumed by those of her husband, has been universally abolished in the United States, spawn of coverture, also known as the doctrine of necessities, lives on in some jurisdictions.
Tim's data indicates it has, where it survives, become a health care debt collection doctrine. The doctrine of necessities has, then, travelled some way from its roots as a safety valve for coverture's restrictions on a married woman's contract rights by allowing her to arrange with a merchant to bind her husband for the expense of the material necessities of daily life. The doctrine did not allow her to contract with the merchant but, rather, for the merchant to impliedly contract with her husband for the necessities.
The states are all over the place on whether the doctrine of necessities ought survive coverture's demise and live on as a health care debt collection device. Tim Hall reports twelve states have abolished the doctrine, twelve states have modified it (often rendering it gender neutral, also far from its coverture roots); and twenty six states retain it in its classic gendered form. Tim reports that he has located no reported case involving the parties to a same sex marriage but, surely, that will change soon enough.
Could health care really be one of the legally recognized necessities of modern daily life, though often predominantly a service and not always or exclusively involving a tangible good? Why, after all, treat health care (defined inclusively to include long term care services) as a life necessity when health care is not recognized as such elsewhere in American law? Or, is the fear of moral hazard too great if they are not recognized as such? Is the health and well being of your spouse a marital asset, after all?