Alaska is a Filial Responsibility state? Really?
August 1, 2018
You can’t believe everything you read online. You knew that already, right? For instance, I don’t know how many times I have seen a list online, showing all the community property states, and Alaska is included on the list. ALASKA IS NOT A COMMUNITY PROPERTY STATE!
Sorry, I didn’t mean to yell. But Alaska is not a community property state. We do have a statute which allows a married couple to opt into community property, by including certain provisions in a living trust or a specific agreement. But that’s not the same as the states where community property is automatic.
But that’s not my topic today. Perhaps another time.
What I want to write about is another, sort-of-similar item that was brought to my attention by a sharp-eyed editor at the Senior Voice. He asked whether it was true that Alaska was a “filial responsibility” state.
A filial responsibility law is one which makes children responsible for their parents’ financial needs. I told him that no, Alaska is not a filial responsibility state. I have never, in my 30-plus year career, heard of the courts finding an adult child to be responsible for the cost of their parents’ care.
But he had attached an online article, from a reputable source, which listed Alaska as a filial responsibility state. So I thought I had better look a little harder.
Because this would be a really big deal. Think about it: if the child can be held responsible for a parent’s cost of care, what happens if the parent is in a nursing home? Let’s say, for example, Mom is elderly and impoverished, and she has a stroke and lands in a skilled nursing facility. The cost could easily be $22,000 per month. And that’s just in Anchorage; there are a lot of places in Alaska where the cost is even higher. Four years in the nursing home, and she’s into it for over a million dollars! And they can tap Junior for that?
Well… maybe. There is, as it turns out, a written statute on this. It is Alaska Statute 25.20.030, and it is only two sentences long. The first sentence:
Each parent is bound to maintain the parent’s children when poor and unable to work to maintain themselves.
Sure, fair enough. After all, this statute dates back to 1949 (it was originally a territorial law) and this was what the judges would have used as the legal basis to order child support, in the days before we had more specific laws on the subject.
But here’s the second sentence:
Each child is bound to maintain the child’s parents in like circumstances.
Ay caramba! There it is! The child is liable for the parent’s care when the parent is poor and unable to work to maintain herself. You might as well hand over your life savings now, because if Mom has a bad turn it’s all gone.
Well, hold on, not so fast.
First of all, the cost of that nursing home, if the parent is truly poor, is likely to be picked up by Medicaid. Can Medicaid come after the child? No, the Medicaid statutes don’t permit that.
Second, this law has been on the books for almost 70 years, and the handful of reported cases on it are all child support cases, in which the issue is whether the parent has to support the child. None of the cases involve the child being forced to support the parent.
And with good reason. It would undoubtedly be unconstitutional to require it. So this statute has been sitting on the books all these years, and nobody has, as far as I can tell, ever successfully used it to force a child to pay for the parent’s cost of care.
Having said that, there are a couple of big exceptions: if the parent transferred money to the child in order to become “poor” and have Medicaid cover the parent’s care, Medicaid can refuse to cover the parent during a “penalty period”. Or, if the parent transferred money to avoid some sort of liability, the money can be “clawed back” under the Fraudulent Conveyance Act. But short of that, you can’t have your assets taken away just because your parent needs to be in a nursing home.
So don’t believe everything you read. Especially on the internet.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account.