Filial Responsibility – The Duty of Adult Children

This article has been reviewed by a practicing attorney in 2020.

This content is not intended to be a substitute for professional legal advice. Always seek the advice of an attorney or another qualified legal professional with any questions you may have regarding your situation.

Taking care of an aging parent can be difficult even without considering the financial ramifications of the cost of care. When parents are unable to pay for the cost of their care, financial worries add another layer of stress for adult children caretakers. What adult children may fail to realize is that they may become financially liable for their parents’ care in about half of the states in the United States through filial responsibility laws. For this reason, it is important for adult children to discuss long-term care options with their parents, not only for their parents’ benefit, but to also safeguard their own financial futures.

First, what are filial responsibility laws?

Filial responsibility laws, enacted by individual states, create a duty for adult children to care for their parents. Such laws may hold adult children financially responsible for their parents’ care and support when their parents are unable to pay. The extent of this responsibility, and the punishment for violating said duty, vary by state. But it is important to understand that nursing homes and other long-term care facilities may use these laws to seek reimbursement from adult children for their parents’ unpaid bills.

Which states have filial responsibility laws?

The following 26 states have some form of the law:

• Alaska
• Arkansas
• California
• Connecticut
• Delaware
• Georgia
• Indiana
• Kentucky
• Louisiana
• Massachusetts
• Mississippi
• Montana
• Nevada
• New Jersey
• North Carolina
• North Dakota
• Ohio
• Oregon
• Pennsylvania
• Rhode Island
• South Dakota
• Tennessee
• Utah
• Vermont
• Virginia
• West Virginia

Puerto Rico also has filial responsibility laws.

Examples of states’ filial responsibility laws

While state laws differ, the following are examples from a select few:

California

California’s law requires an adult child, “to the extent of the adult child’s ability,” to support a parent who is unable to support themselves. A parent, or the county on behalf of the parent, may even bring an action against an adult child to enforce this duty to support. A court considers the following circumstances of both the parent and the adult child when determining the amount of support an adult child is obligated to pay:

• Earning capacity and needs
• Obligations and assets
• Age and health
• Standard of living
• Other factors the court deems just and equitable

The California penal code also provides that “every adult child who, having the ability so to do, fails to provide necessary food, clothing, shelter, or medical attendance for an indigent parent, is guilty of a misdemeanor.”

Massachusetts

Massachusetts’ law requires any adult child, who has “sufficient means,” to provide support and maintenance for a parent, if the parent, “through misfortune and without fault of his own, is destitute,” is unable to support and maintain his or herself, and is living in the state of Massachusetts. Failure to provide for a parent may be punishable by a fine not to exceed $200 or by imprisonment not to exceed one year, or both.

Tennessee

Tennessee’s law allows nursing homes and long-term care facilities to seek reimbursement from “responsible parties” for benefits rendered to a recipient of medical assistance. Importantly, “responsible parties” include parents, spouses, children, and guardians, of the medical care recipient.

Virginia

Virginia requires that adult children siblings “share equitably in the discharge” of the duty to support their parents. Furthermore, if a court determines that an adult child “has failed to render his or her proper share in such support and maintenance,” the court may compel contribution by the adult child “to any person or authority which has theretofore contributed to the support or maintenance of the parent.”

When would I be obligated under a filial responsibility law?

It is important to understand that you do not have to co-sign for your parents’ care to be liable for the cost of it under these laws. You may be obligated to pay for your parents’ care if:

• Your parent received care in a state with a filial responsibility law
• Your parent did not qualify for Medicaid when they received care
• Your parent does not have the funds available to pay their bills
• Your parent qualifies for indigent status, i.e. their Social Security benefits cannot cover their expenses
• The nursing home or long-term care facility has determined that you have the ability to pay the outstanding bill or that your parent fraudulently transferred their assets to you
• The nursing home or long-term care facility decides to seek reimbursement from you

Are filial responsibility laws really enforced?

While these statutes have been around for decades, and have not generally been enforced, experts predict a rise in enforcement due to skyrocketing health care costs and the aging Baby Boomer generation. Unless your parent’s primary care doctor is a greedy Scrooge, it is unlikely that you will be sued over an unpaid $20 copay. However, when a debt is high, providers are unfortunately more likely to seek reimbursement from you, the adult child. This is why filial responsibility cases tend to involve long-term care facilities and the associated unpaid bills. If your parent stays in a long-term care facility, even for a short time, without Medicaid or long-term care insurance, your parent will be required to pay for their stay out of pocket. If they are unable to do so, the long-term care facility may seek repayment from you.

Potential ramifications

If your parent’s caregiver determines you are able to pay and chooses to seek reimbursement from you, the caregiver will generally send a letter demanding payment and explaining that a lawsuit will be filed if payment is not made. If the caregiver files a lawsuit, and the court determines that you are liable for the cost of your parent’s care, the court may garnish your wages or levy your bank account to pay for reimbursement. In addition, if you refuse to provide your parent with support, as briefly discussed above, you may be liable for civil fines or penalties as well as criminal penalties that carry jail sentences.

Filial responsibility laws and Medicaid

As alluded to above, it is unlikely that you would be financially liable, under a filial responsibility law, for the cost of your parent’s care if your parent received Medicaid benefits while also receiving said care. Under federal law, a state cannot pursue family members for reimbursement of the cost of care if a parent is eligible for Medicaid coverage. 

However, you may still end up effectively “paying,” at least a portion of the cost of your parent’s care, from your inheritance through Medicaid’s estate recovery program. Federal law requires states to recover the amount Medicaid spent on an individual’s behalf from his or her estate after death. Assets included in Medicaid recovery are real property, such as a house, or other personal property. So, while nursing homes or other long-term care facilities would be unable to sue you to recover the cost of care spent on your parent, Medicaid may seek recovery from your parent’s estate, depriving you of an anticipated inheritance.

Exceptions to filial duty

Many states provide exceptions to a child’s filial responsibility if there is evidence that the parent abused, neglected, deserted, or failed to support the child when he or she was a minor.

How to avoid filial responsibility

The best way to avoid filial responsibility is to speak with your parents concerning estate planning and their long-term care needs. While this may be an awkward conversation, it is an important one. If it is unlikely that your parents will be able to provide for their own care and they would receive care in a state with filial responsibility laws, it may be worth considering purchasing long-term care insurance on your parents’ behalf.

It may also benefit you to consider whether your parents qualify for Medicaid.  Our articles concerning using Medicaid for long-term care and using a Miller Trust to help qualify for Medicaid may be beneficial resources for you.  Importantly, there are legal ways to lower your parents’ income and assets, and a qualified elder law attorney should be able to help you and your parents determine the best long-term care options for your family.

Conclusion

In conclusion, the impact of filial responsibility laws can be complex and potentially burdensome. The financial responsibilities that may fall on adult children for their parents’ care can be daunting. It’s crucial to engage in critical conversations about estate planning and long-term care with aging parents to plan ahead and avoid potential pitfalls. Consulting a qualified elder law attorney can be an indispensable step in navigating these complexities. Moreover, anticipating the potential impact on your financial future can help you make informed decisions on how best to plan for your parents’ long-term care needs.

Sources:

1. Section 20: Neglect or Refusal to Support Parent, Massachusetts Legislature, malegislature.gov
2. California Family Code §§ 4400-4405, California Legislative Information, leginfo.legislature.ca.gov
3. § 20-88. Support of Parents by Children, Virginia Law, law.lis.virginia.gov
4. On Paper, Filial Support Laws Hold Adult Children Accountable, Special Needs Alliance, www.specialneedsalliance.org