By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Administration Attorney

Martial vows vary from person to person, couple to couple, but each vow contains very similar promises to the other, including  you will love and honor your significant other in good times and in bad, in sickness and in health, until death do you part.  It is this pre-death, pre-divorce, promise that created the New Jersey common-law called the “doctrine of necessaries”.  Simply put, the doctrine states that if a spouse buys or needs life’s “necessaries”-food, clothing, shelter- and is unable to pay for it him or herself, a creditor can go after the assets and income of the other spouse. When I use the term “Common-law” understand that it is not an actual statute that you can look up.  It is a principle that New Jersey courts have followed overtime. Since in prior generations women traditionally took care of the house, while men earned the money to support the family, and because the man had the money, and the woman often owned nothing or very little in her name, if she needed to go out to get her family food or clothing, and she had no money to her name, it would follow that the creditor would have a right to compel the husband/breadwinner’s assets to pay for the wife’s expenses on behalf of the family.

Of course, what was normal long ago is different today.  While most states have eliminated the doctrine altogether, New Jersey still recognizes it, but a little bit differently.  In Jersey Shore Med. Ctr.-Fitkin Hosp. v. Baum’s Estate, 84 N.J. 137, 141 (1980), the New Jersey Supreme Court recognized that marriage is a partnership and both spouses are liable for the necessary expenses incurred by either spouse in the course of the marriage.  Ironically, this is more in line with a marriage vow than what the doctrine of necessaries provided for originally.  While our Courts make clear that the assets of the spouse incurring the debt can be looked at first by a creditor, joint assets should be considered if separate assets are insufficient in the absence of an agreement.

While courts haven’t considered whether pre-nuptial agreement precludes a spouse from assuming the debt of a spouse incurred during the marriage, it is likely that given the court’s holding in Jersey Shore, a pre-nuptial agreement will not absolutely preclude a creditor from going after the other spouse.  After all, marriage signifies your commitment to support the other spouse.  But if the pre-nuptial agreement defines what separate property is, it could certainly be beneficial to determine what each spouse brought into the marriage in order to resolve whether a creditor needs to execute the couple’s assets to satisfy a debt.

Question? Can a nursing home or medical equipment provider file a collection action for essential medical care and long term care services? Interesting question…

To discuss your NJ Estate Administration and Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.