By Caleb Stone, Elder Law Clinic Student, Spring 2015

Most people know that every state imposes a legal obligation upon parents to provide for their children; however, many Americans would be surprised to find out that their states also have statutes mandating that adult children take care of their indigent parents. The laws are often called “filial duties,” are on the books in at least 25 states.[1] The majority of these filial laws are civil obligations, but 12 states impose criminal penalties for the failure to comply.[2] These laws, though not commonly-known, have a long history that can be traced back to 16th Century England, where they were part of an effort to combat widespread poverty.[3]

Today’s America, while very different from 16th Century England, has a major problem: a booming aging population with not enough financial resources to completely support themselves. The current average lifespan in the United States is nearly 79 years old,[4] up from approximately 49 years old in 1902.[5] Some commentators point out that these demographics could lead more government officials to enforce the filial laws already on the books.[6] Indeed, looking internationally, China recently passed laws imposing this legal burden upon its citizens, citing in part the long-term strain the elderly would place on their social welfare system.[7] Filial laws have garnered more academic discussion in recent years,[8] especially after a Pennsylvania court in 2012 used filial laws to hold a man responsible for his parents’ $92,000 medical bill.[9]

Virginia does have such a filial law, but it seems to be more lenient than Pennsylvania’s. The pertinent statute does state that “[it is] the duty of all persons . . . of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father . . . .”[10] Research, however, indicates that this statute has not been used to hold an adult child financially liable since 1978.[11] Unusually, the statute does not apply if there is “substantial evidence of desertion, neglect, abuse, or willful failure to support any such child” or “if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program.”[12] So, while it does not seem that Virginia is going to start enforcing this statute anytime soon, Virginia residents with elderly parents should understand the possibility that their moral obligations could, in theory, be enforced by the coercive power of the courts.

[1] Donna Harkness, What Are Families for? Re-Evaluating Return to Filial Responsibility Laws, 21 Elder L.J. 305, 321 (2014).

[2] Id.

[3] Keli Goff, Are You Legally Responsible for Your Elderly Parents?, The Daily Beast (Apr. 26, 2014), http://www.thedailybeast.com/articles/2014/04/26/are-you-legally-responsible-for-your-elderly-parents.html.

[4] Life Expectancy FastStats, CDC, http://www.cdc.gov/nchs/fastats/life-expectancy.htm (last visited Mar. 20, 2015).

[5] Laura B. Shrestha, Cong Research Serv., RL32792, Life Expectancy in the United States 3 (2005), available at http://www.cnie.org/nle/crsreports/05mar/RL32792.pdf.

[6] Goff, supra note 3. But see Matthew Pakula, The Legal Responsibility of Adult Children to Care for Indigent Parents, Nat’l Ctr. for Policy Analysis (July 12, 2005), http://www.ncpa.org/pdfs/ba521.pdf (stating that filial laws will continue to be rarely enforced because federal law prevents states from considering the financial responsibility of non-spouses when determining eligibility for Medicaid or other poverty programs).

[7] See Edward Wong, A Chinese Virtue Is Now the Law, N.Y. Times, July 3, 2013, at A4, available at http://www.nytimes.com/2013/07/03/world/asia/filial-piety-once-a-virtue-in-china-is-now-the-law.html.

[8] Harkness, supra note 1, at 321.

[9] Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719 (2012).

[10] Va. Code Ann. § 20-88 (2014).

[11] See Peyton v. Peyton, 8 Va. Cir. 531 (1978)

[12] Va. Code Ann. § 20-88 (2014); see also Patrick C. Murphrey, Picking up the Tab for Mom & Dad: A Look at Filial Responsibility Laws in 2011, Fam. L. News (Va. Bar Ass’n), Summer 2011, at 3, available at http://www.vsb.org/docs/sections/family/summernews2011.pdf.