If you and your partner or spouse live in a state that had once made same-sex marriage illegal, you may still be adjusting to your expanded civil rights. In addition to being able to legally marry your same-sex partner and serve as his or her proxy in major healthcare decisions, you may also now have an expanded cause of action when your spouse or partner is injured (or even killed) in a car crash or other accident. Read on to learn more about how this nationwide ruling may affect personal injury standing and claims in your state.
Who has the right to file a personal injury lawsuit?
Each state sets forth its own rules on who is permitted to file a personal injury lawsuit on behalf of another person. For example, in a wrongful death case, some states permit only the surviving spouse or minor children to sue the person (or company) at fault for the death, whereas other states permit parents, siblings, or even grandparents to file such claims. In states where same-sex marriage was illegal prior to the Supreme Court's recent ruling, this often operated to prevent long-term, committed same-sex couples from being able to seek justice against someone responsible for committing physical harm against one half of the couple.
Because a spouse is permitted to file a wrongful death lawsuit against an alleged transgressor in all 50 states, this means that couples who were previously excluded from legal marriage through their state laws or constitutions are now able to file a wrongful death lawsuit against someone whose negligence or recklessness has killed a spouse -- as long as the marriage was finalized before the death. Few (if any) states have taken steps to extend wrongful death protections against domestic partners now that same-sex marriage is legal, so choosing not to marry when you are legally able to do so can potentially waive certain rights.
What are loss of consortium claims?
Another area in which state personal injury and wrongful death claims are changing involves the eligibility to file claims against a negligent party for "loss of consortium." This claim is available to spouses who have dealt with their own difficulties following an injury or illness suffered by the other spouse and is usually used to increase the monetary amount of damages awarded against a defendant. Loss of consortium claims can also be raised as an element of damages in a wrongful death action.
Loss of consortium claims can be fairly broad and encompass a variety of losses. For example, if your spouse was the primary caregiver to your young children prior to the accident and was unable to care for them for some period following the accident (requiring you to incur childcare expenses or take a leave of absence from your job), you should be able to raise these issues as part of the underlying claim and be awarded additional monetary damages. This claim can also allege more intimate damages, such as if the accident prevented your spouse from being able to engage in sexual activity for an extended period of time or caused mental or emotional problems that required intensive therapy for both of you.
As with the expansion of wrongful death lawsuits to same-sex spouses who choose to take advantage of their right to marry, loss of consortium damages may now be awarded to same-sex spouses whose partner's personal injury has affected marital relations or caused stress or strain to the relationship. But again, these damages are often available only to those who have taken advantage of the right to marry during the period following the Supreme Court's 2015 decision. To learn more about how this recent ruling will affect you, contact a local family or personal law firm.