Necessaries Doctrine Allowed wife to buy necessities from a third party using her husband’s credit If the husband refused to pay, creditor could sue husband for the debt May creditors were unwilling to extend credit to women because in practice Definition of what was “necessary” depended on the family’s social position and was limited by the husband’s ability to pay Creditor had to rely on husband’s credit, not the wife’s, credit and it was difficult to know going into court whether the doctrine would apply The doctrine of necessaries in Indiana is: (1) Each spouse is primarily liable for his or her independent debts; (2) Typically, a creditor may look to a spouse for satisfaction of the debts of the other only if the spouse has otherwise agreed to contractual liability or can be said to have authorized the debt by implication under the laws of agency; (3) When there is a shortfall between a dependent spouse’s necessary expenses and separate funds, the law will impose limited secondary liability upon the financially superior spouse by the doctrine of necessaries. (Bartrom v. Adjustment Bureau, Inc.) Spousal Property Distribution upon Death Community property states: (regardless of will) surviving spouse is entitled to ½ of the property accumulated during the marriage Common law states: surviving spouse may be left out of the will entirely Dower: widow is entitled to life interest in 1/3 of her husband’s real property Curtesy: Widower acquired life interest in all of his wife’s real property if children were born into the marriage No longer exist in most jurisdictions All-non community property states have replaced them with the statutory elective share, allows a surviving spouse to elect to receive 1/3 or depending on the state, ½ of the estate of the deceased spouse Elective share typically applies to all property, not just real estate, it is gender neutral, and it provides full ownership, not just a life estate Wills and protection of children (majority rule) A parent may disinherit a minor or adult child for no reason, no matter how young the child is, and even if disinheritance leaves the child with no means of support; Like the testator’s other financial obligations, a legally enforceable obligation to pay child support must be satisfied before distribution of assets under the will; and
Necessaries Doctrine Allowed wife to buy necessities from a third party using her husband’s credit If the husband refused to pay, creditor could sue husband for the debt May creditors were unwilling to extend credit to women because in practice Definition of what was “necessary” depended on the family’s social position and was limited by the husband’s ability to pay Creditor had to rely on husband’s credit, not the wife’s, credit and it was difficult to know going into court whether the doctrine would apply The doctrine of necessaries in Indiana is: (1) Each spouse is primarily liable for his or her independent debts; (2) Typically, a creditor may look to a spouse for satisfaction of the debts of the other only if the spouse has otherwise agreed to contractual liability or can be said to have authorized the debt by implication under the laws of agency; (3) When there is a shortfall between a dependent spouse’s necessary expenses and separate funds, the law will impose limited secondary liability upon the financially superior spouse by the doctrine of necessaries. (Bartrom v. Adjustment Bureau, Inc.) Spousal Property Distribution upon Death Community property states: (regardless of will) surviving spouse is entitled to ½ of the property accumulated during the marriage Common law states: surviving spouse may be left out of the will entirely Dower: widow is entitled to life interest in 1/3 of her husband’s real property Curtesy: Widower acquired life interest in all of his wife’s real property if children were born into the marriage No longer exist in most jurisdictions All-non community property states have replaced them with the statutory elective share, allows a surviving spouse to elect to receive 1/3 or depending on the state, ½ of the estate of the deceased spouse Elective share typically applies to all property, not just real estate, it is gender neutral, and it provides full ownership, not just a life estate Wills and protection of children (majority rule) A parent may disinherit a minor or adult child for no reason, no matter how young the child is, and even if disinheritance leaves the child with no means of support; Like the testator’s other financial obligations, a legally enforceable obligation to pay child support must be satisfied before distribution of assets under the will; and
FamilyLaw_Widiss_Spring2011.docx