Can Governments Go Into a Kid's Wallet to Pay for Mom and Dad's Long Term Care
Expenses? A Review of Filial Support Laws
by Barry Kozak,
Director, Elder Law Programs, The John Marshall Law School, Chicago bkozak@jmls.edu,
Co-Director, Sino-American Research Center for an Aging Population, www.jmls.edu/sarcap
for the 2013 Governor's Conference on Aging and Disability, Illinois Dept. on Aging, Chicago
Historical and cultural roots
 early Roman law
 Judeo-Christian tradition {Moskowitz, Policy Review, citing Exodus 20:12 (King James)
and Matthew 15:2, 4 (King James)}
o St. Thomas Aquinas concurs {Id.}
o Aristotle also preached this {Id.}
 The Elizabethan England's poor relief act of 1601.
o That act required that the father, grandfather, mother and grandmother and the
children of the very poor, blind, lame and impotent person to support that
individual to the extent they were able.
o This English system for dealing with the poor indigent was transplanted to the
American colonies.
o Currently, in America, there needs to be a statute specifically imposing the
support liability, and state action that enforces and supports the law.
 public policy {Wise, Caring for Our Parents}
o honor and gratitude
o indebtedness and reciprocity
o public cost containments
o romanticized notions of family caregiving
In the United States, currently:
 4 states currently have active filial support laws
o California, New Jersey, and Pennsylvania (see charts below):
 25 other states have filial support laws on the books, but do not seem to be active:
o Alabama, Arkansas, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa,
Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada,
New Hampshire, North Carolina, North Dakota, Ohio, Oregon, Rhode Island,
Tennessee, Utah, Vermont, Virginia, and West Virginia
 See Pearson, “Filial Support Laws in the Modern Era: Domestic and International
Comparison of Enforcement Practices for Laws Requiring Adult Children to Support
Indigent Parents” (2012), available at
http://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1034&context=fac_works
1
state
Possible plaintiffs
California  A parent
 A county on
Cal. Fam.
behalf of a
Code § §
parent, or
4400  The county, in
4414
the shoes of
the parent, if it
provides
support

Possible
defendants
An adult
child

DEFENSE:
If the child was
abandoned
while a minor
for at least 2
years while the
parent was
physically and
mentally able to
support the child

New
Jersey
N.J.S.A.
44:1-139
– 142

The county
welfare board,
on application
for relief for a
poor person


Spouses
Children up
to age 55
DEFENSE (for
children):
If a child was
abandoned and
deserted by the
poor person,
who failed to
support and
maintain him
during minority,
then the support
may be reduced
proportionally

remedy
The
amount
necessary,
based on
earning
capacity
and needs;
obligations
and assets;
health and
age;
standard of
living; and
other
factors that
the court
deems just
and
equitable
Attorney
fees
Such sum
as the
circumstan
ces may
require in
the
discretion
of the court
for each
poor
person





comments
Last amended
in 1994
Very organized
statute (with
jail time), so
warning if it
starts being
used by
counties
The municipal
director of
welfare shall
ascertain …
and proceed …
or compel
them to render
such assistance
as is provided
by law
Last amended
in 1980
Not many
recent cases
2
state
PennsylVania
23
Pa.C.S.A.
§ § 4601 –
4606.
South
Dakota
SDCL § §
25-7-27
and
25-7-28
Possible plaintiffs
 The indigent
person, or
 Any other
person, public
body or public
agency having
any interest in
the care,
maintenance
or assistance
of the indigent
person may
petition the
court

??



Possible
defendants
Spouse
Child, or
Parent with
the means to
provide
support to
the indigent
individual

DEFENSE (for
children):
If a child was
abandoned by
the parent for at
least 10 years
before reaching
the age of
majority)



child with
the ability to
pay
LIMITATION:
Brothers and
sisters, on a pro
rata share, based
on their ability
to pay
remedy
The cost of
medical
assistance
needed to
care for the
aged
indigent
individual,
but not
more than
6 times
discretionary income
The person
owing
money for
care can be
held in
contempt
of court
and
imprisoned
for up to 6
months
necessary
food,
clothing,
shelter, or
medical
attendance




comments
Amended
recently in
2005
Several cases
upheld at
appellate state
court, where
plaintiff was
the Nursing
Home
One child was
required to pay
$95,000.
state supreme
court upheld
laws in 1994,
even though
son did not
reside in South
Dakota for
many years
3
Other countries:
 Italy (from Anna Maria De Giacomo, “A comparative analysis of Filial Responsibility:
Italy and United States,” available at):
http://www.law2.byu.edu/isfl/conferences/A%20comparative%20analysis%20of%2
0filial%20responsibility.pdf).
o According to Article 433 of the Civil Code, children can maintain their parents in
two ways: (1) Paying periodical contribution in favor of them; or, (2) Housing
them.
o One of the main problems that Italian Judges have to deal with is determining
the entity who should provide the support child and the quantity of this support
because of the lack of a specific statute in this sense.
o In cases of controversy, a great numbers of elements have been considered by
the Italian courts. The most important are: 1. substances of child, 2. the income
that child receives, 3. the assets of child subject at legal usufruct, and the
economic condition of the family’s members. However, as we have said before,
most of those principles are not easy to enforce and they are self-regulated.
 Singapore (from GHY ting and Woo JEAN, “Elder Care: Is Legislation of Family
Responsibility the Solution?” 4 Asian J. Gerentol Geriatr 72 (2009)
o Under the Maintenance of Parents Act, when a parent (the applicant) is over 60
years old and he is unable to maintain himself through work or from his
property or other sources, he can bring a civil action against his adult child (the
respondent).
o Claims are handled by a special tribunal.
o From 1996 to 1999, 4 out of 5 applicants successfully obtained an order to
compel their children to support them.
 China (from GHY ting and Woo JEAN, “Elder Care: Is Legislation of Family
Responsibility the Solution?” 4 Asian J. Gerentol Geriatr 72 (2009)
o Under the Law on Protecting the Rights and Benefits of Older Persons, family
members have a duty to take care of their elderly parents.
o The children have a duty to give financial and emotional support to their elderly
parents.
o In cases of dispute, the elderly parents can ask the organization in which the
children are employed, the neighborhood committees or the villagers’
committee to mediate.
o They can also bring a lawsuit directly to the People’s Court.
 Hong Kong (from GHY ting and Woo JEAN, “Elder Care: Is Legislation of Family
Responsibility the Solution?” 4 Asian J. Gerentol Geriatr 72 (2009)
o There is no filial responsibility law.
o It was voted down because elderly parents did not support such legislation.
o One of their concerns was family harmony.
o Instead, if a person gives financial support to a parent or grandparent, then
there are allowable deductions against his income tax liability.
4



Canada (from Andrea Rickles-Jordan, “Filial Responsibility: A Survey Across Time and
Oceans,” 9 Marquette Elder’s Adv 183 (2007)
o All provinces now have their own civil (rather than criminal) laws that require
children to provide support to indigent parents.
Germany (from Andrea Rickles-Jordan, “Filial Responsibility: A Survey Across Time and
Oceans,” 9 Marquette Elder’s Adv 183 (2007)
o The primary responsibility for indigent parents lies on adult children and
families, while the local state and federal governments are only secondarily
responsible.
o Germany's Civil Code additionally obligates relatives in the direct line of descent
to care for one another.
Japan (from Andrea Rickles-Jordan, “Filial Responsibility: A Survey Across Time and
Oceans,” 9 Marquette Elder’s Adv 183 (2007)
o The Japanese have chosen to use government policies and non-coercive
methods to affirmatively support adult children who care for their elder
parents.
o Some of the national policies adopted include tax deductions or exemptions,
institutional care, and support for institutions interacting with families.
o Japan has also created "Japan Efficiencies," or rental families that provide a
surrogate son, daughter-in-law, and a grandchild who spend several hours with
elders whose biological children have moved away or are too busy to visit.
5