The Constitutionality of Kentucky’s Doctrine of Necessaries


Marriage to a person with a significant amount of debt can raise some concerns and has potential to create large amounts of liability for the other party. Many states have implemented a doctrine of necessaries in attempts to define the amount of liability created when there is a spousal relationship, where one party has incurred any amount of debt. 82 Mich. L. Rev. 1767 (1983-1984). Originally, the doctrine of necessaries was implemented as remedy for women whose husband could not provide a reasonable amount of necessities, in a time when the woman was not legally able to procure food, shelter, or medical services independent from their husbands, O’Daily v. Morris, 31 Ind. 111. Once women began to gain more individual rights in America, the doctrine of necessaries remained, but its functionality was slightly altered. Instead of the doctrine providing a way for the wife to recover a necessary means of survival, it has now become a definition of liability from one spouse to another in the event that a creditor attempts to collect from one spouse for the necessary debts of the other spouse during marriage.

In recent years states have taken many approaches to adapting the doctrine of necessaries to the current social environment. See Emanuel v. McGriff, 596 So.2d 578; Regional Medical Ct., Inc. v. Bowles, 836 P.2d 1123. However, Kentucky has yet to change the doctrine of necessaries to adapt to the changing social perspective. Kentucky’s doctrine of necessaries remains that the husband is responsible for the necessary debts of the wife, but the wife is not responsible for the necessary debts of the husband. Ky. Rev. Stat. § 404.040. Kentucky’s interpretation of the doctrine does not take into consideration that women account for 46.8 percent of the labor force in the United States and account for $1.4 trillion in business receipts annually.[1]

Around the same time that the doctrine of necessaries was implemented in Kentucky, Congress passed the Fourteenth Amendment which contained the Equal Protection Clause imbedded in Section One. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” USCS Const. Amend. 14, USCS Const. Amend. 14, § 1. Many states adapted their common law doctrine of necessaries to make both parties liable for the other spouse’s debts or to make neither party liable for the other spouse’s debts. See Emanuel v. McGriff, 596 So.2d 578; Regional Medical Ct., Inc. v. Bowles, 836 P.2d 1123.  Kentucky’s statute has continued to make the husband liable for the wife’s debts.  Ky. Rev. Stat. § 404.040.

Priestley v. Priestley, 949 S.W.2d 594 (Ky. 1997), was the first Kentucky case to mention that  KRS 404.040 might be unconstitutional as a gender based classification in violation of the equal protection clause of the fourteenth amendment, but refrained from addressing the constitutional issue to decide the case. On February 16, 2018, Daniel White filed a complaint against Jewish Hospital, Universal Fidelity, LP, and Link Revenue Resources, LLC, for attempting to collect a medical debt from which was acquired by his wife. White v. Universal Fid., LP, No. 3:17-cv-00044-GFVT, 2018 U.S. Dist. LEXIS 27737 (E.D. Ky. Feb. 16, 2018). The complaint also included a claim which challenges the constitutionality of KRS 404.040 under the Equal Protection Clause of the Fourteenth Amendment. Id.

In this case, the plaintiff is happily married to his wife. Id. The plaintiff’s wife incurred some medical expenses, in which, she has yet to pay off. Id. The collectors of the medical bills decided that it was appropriate to collect payment from the plaintiff using KRS 404.040 as their justification. Id. Plaintiff claimed that KRS 404.040 is unconstitutional, thus making it wrong for him to be responsible for the debts of his wife. Id.

In order to prevail on the claim that KRS 404.040 is unconstitutional; the plaintiff will carry the burden of proof to determine that the statute expressly discriminates on the basis of sex. Kirchberg v. Feenstra, 450 U.S. 455, 101 S. Ct. 1195 (1981). The United States Supreme Court has previously determined that a statute which treats men unfavorably does embody gender based discrimination and can violate the equal protection clause. Id. Therefore, the statute which expressly treats a husband differently than a wife, as it does in KRS 404.040, should be found to be facially discriminatory. If the Court concurs, the burden will then shift to the Commonwealth of Kentucky to defend their statute. United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996).

Because this case involves gender discrimination the courts will apply the intermediate scrutiny test to determine whether the government overcame their burden of proof to validate the statutes discriminatory nature. Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910 (1988). In order to overcome the determination that there is in fact a discriminatory statue, the Commonwealth must prove that the statute was substantially related to an important government interest. Id. If the commonwealth fails to do this then the statute would be invalid, and the plaintiffs position would turn on whether the courts want to enforce the debts against the husband and wife or against only the party who acquired the debt.

The outcome of this case could greatly affect the future of Kentucky spouses. As of now the husband is the only spouse who has the burden of necessary debts thrust upon him by KRS 404.040. A reformation of this statute could mean that both of the spouses will now have liability for the other spouse’s debts as it is in New Jersey, or that a spouse will not be liable at all for their spouse’s debts as it is in Alabama. Wives, especially, should be aware of this pending case so they know what kind of debts they could be held responsible for in the near future.

[1] Mark DeWolf, 12 Stats About Working Women, U.S. Department of Labor Blog (March 1, 2017), https://blog.dol.gov/2017/03/01/12-stats-about-working-women.

 

** Many thanks to Jamie Kohls for her contributions to this article.  Jamie is a law clerk with Slovin & Associates Co., L.P.A. and student at the Salmon P. Chase College of Law.  **