On certification to the Superior Court, Law Division.
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pollock, J. Sullivan, J., concurring in the result.
This case presents the novel question whether, in the absence of an express agreement, a widow is liable for the hospital and medical expenses of the last illness of her deceased husband. The trial court granted summary judgment for the defendant, Carolyn Baum, and plaintiff, Jersey Shore Medical Center-Fitkin Hospital, appealed. We granted direct certification. 81 N.J. 358 (1979). We now affirm the summary judgment for Mrs. Baum.
Sidney Baum, defendant's late husband, died at the hospital after a long illness which exhausted his medicaid benefits and left a balance due the hospital of $25,709.50. He owned no assets at the time of his death, except his interest as tenant by the entirety with Mrs. Baum in their home, and, presumably, miscellaneous personal assets of minimal value. His estate was insolvent, and no one sought letters of administration. Although the estate is named as a party, it has not been represented in these proceedings.
Mrs. Baum owns no assets of any value other than her home, which is assessed at $25,200. She never agreed to pay her husband's hospital bill.
The hospital sued Mrs. Baum and the estate of Mr. Baum for the balance due on Mr. Baum's bill, contending that the common law rule that imposed liability on a husband for the necessaries furnished to his wife should be extended so that a wife would be liable for the necessaries, such as expenses of a last illness, of her husband. That contention is based on the increasing independence
of women, the emerging concept of marriage as a partnership, and the belief that husbands and wives should be treated equally.
We conclude that the common law rule must yield to the evolving interdependence of married men and women and to the reality that a marriage is a partnership. Consequently, we declare that both spouses are liable for necessary expenses incurred by either spouse in the course of the marriage. As long as the marriage subsists, the financial resources of both spouses should be available to pay a creditor who provides necessary goods and services to either spouse. That conclusion comports with our belief that in most marriages a husband and wife consider themselves as a financial unit in paying necessary expenses incurred by either marital partner. However, a judgment creditor must first seek satisfaction from the income and other property of the spouse who incurred the debt. If those financial resources are insufficient, the creditor may then seek satisfaction from the income and property of the other spouse.
The common law rule imposing liability on a husband for his wife's necessaries derived from the husband's obligation to support his wife. See Capodanno v. Capodanno, 58 N.J. 113 (1971); Bonanno v. Bonanno, 4 N.J. 268 (1950). That duty arises not from principles of contract law, but from the marriage relation and the public policy of the State. Bonanno v. Bonanno, supra at 273; Turi v. Turi, 34 N.J. Super. 313 (App. Div. 1975) (action for separate maintenance); 10 N.J.Practice (Silverman, Marriage, Divorce and Separation), § 331 (1978). See generally 41 Am.Jur. 2d Husband and Wife §§ 329 et seq. (1968). The husband's duty developed in an era when a wife depended on her husband for support and, in exchange, provided him with her services and society. See, e.g., Howard v. Howard, 135 N.J. Eq. 55 (E. & A. 1944); Fallon v. Fallon, 111 N.J. Eq. 512 (E. & A. 1932). A wife had no duty at common law to support her husband. See 41 Am.Jur. 2d Husband and Wife § 334.
The husband's duty to support his wife led to the imposition of liability on him for necessaries furnished to her. The basis of liability for expenses incurred by the wife was the husband's presumed failure to provide adequate support. Saks & Co. v. Bennett, 12 N.J. Super. 316 (App. Div. 1951); 10 N.J.Practice §§ 334, 335; 41 Am.Jur. 2d §§ 348, 349. There is no doubt that the cost of hospital and medical care qualifies as a necessary expense. Capodanno v. Capodanno, supra. See generally 10 N.J.Practice §§ 335 et seq. Accordingly, in the converse of the present case, a widower was found liable for the payment of the expenses of the last illness of his wife. Foster v. Reiss, 31 N.J. Super. 496, 508 (App. Div. 1954), rev'd on other grounds 18 N.J. 41 (1955). See also DeLisle v. Reeves, 96 N.J. Eq. 416, 418 (E. & A. 1924) (administrator of deceased wife's estate not under a duty to pay nursing and funeral expenses of wife). However, a wife was not bound to pay the expense of the last illness of her husband unless she assumed that obligation. 41 Am.Jur. 2d Husband and Wife § 382 at 320.
Statutes have modified the rights and duties of husband and wife in dealing with each other and with creditors, but not regarding necessary expenses. For example, N.J.S.A. 2A:34-23 imposes the same duties of alimony or support on both spouses in matrimonial actions and provides for the equitable distribution of property on divorce. However, that statute does not apply to the liability of one spouse to a creditor for necessaries acquired by the other spouse.
Similarly, the Married Woman's Act declares that the separate property of a married woman shall not be liable for her husband's debts. N.J.S.A. 37:2-15. A corresponding provision states that a husband shall not be liable for the debts of his wife contracted in her own name. N.J.S.A. 37:2-10. However, the Married Woman's Act did not alter the husband's duty to pay for the necessary expenses of his wife. 10 N.J. Practice § 332; 41 Am.Jur. 2d Husband and Wife §§ 329, 348. See also Capodanno v. Capodanno, supra, 58 N.J. at 119; Bonanno v. Bonanno, supra, 4 N.J. at 274. A husband has an independent duty arising out of the marital relationship to pay for the necessary
expenses of his wife. In effect, a wife's necessaries are her husband's debts. Consequently, the Married Woman's Act, which protects a husband from the debts of his wife, does not affect his independent liability.
Here, the hospital claims that expenses of the last illness of Mr. Baum should be treated like funeral expenses. A husband is primarily liable for his wife's funeral expenses, Stryker v. Sands, 4 N.J. 182 (1950); but, in general, a wife is not primarily liable for her husband's funeral expenses. See Donato v. Mason, 117 N.J. Super. 1, 3-4 (App. Div. 1971). The hospital argues that, although a wife is immune from liability for the debts of her husband under N.J.S.A. 37:2-15, the immunity does not extend to debts of the husband's estate. The argument continues that, ...