Same Sex Marriage and Loss of Consortium

In 2008, The California Supreme Court held that the current California statutes limiting marriage to only opposite-sex couples was a violation of the state constitutional rights of same-sex couples. They determined that they may not be used to preclude any same-sex couples from marrying. California is now one of 13 states that recognize same-sex marriage.

As a married couple, a same-sex couple can enjoy:

• Family leave benefits.
• Joint state tax filing.
• Family law rights like annulment, divorce, domestic violence, child support, child custody, alimony, adoption, and property division.
• Rights to sue under tort law or other law concerning spousal relationships including wrongful death and loss of consortium.
• Medical rights including hospital visitation, power of attorney and notification.
• Property inheritance if one partner dies without a will.

Among these rights is the right to sue for wrongful death and loss of consortium. According to the California State Supreme Court in Rodriguez v. Bethlehem Steel Corp., “We . . . declare that in California each spouse has a cause of action for loss of consortium, as defined herein, caused by a negligent or intentional injury to the other spouse by a third party.” Though this law was written in the 1970’s, today it covers both opposite-sex and same-sex spouses. This means that if a spouse is killed in an accident that was caused by another’s negligence, the spouse can seek damages whether they are same-sex or opposite-sex.

Loss of Consortium

But what is loss of consortium and why would a spouse sue for it? In another case, Ledger v. Tippitt, the California Supreme Court ruled that “The concept of consortium includes not only loss of support or services; it also embraces such elements as love, companionship, comfort, affection, society, sexual relations, the moral support each spouse gives the other through the triumph and despair of life, and the deprivation of a spouse’s physical assistance in operating and maintaining the family home.” Loss of consortium essentially entitles spouses who have suffered as a result of the death or injury of their spouse to seek compensation for damages from the at-fault party. Loss of consortium damages are meant to compensate the surviving spouse for the loss of an injured or deceased spouse’s:

California juries are specifically instructed that the loss of consortium is the “loss of [the spouse’s] love, companionship, comfort, care, assistance, protection, affection, society and moral support; and any loss or enjoyment of sexual relations or the ability to have children or any loss of [the spouse’s] physical assistance in the operation and maintenance of the home…”

Loss of consortium damages are considered “non-economic” damages which means that they do not involve a precise monetary loss from case to case, nor do they possess any objective cash value. This means that an award for loss of consortium is usually left to the discretion of the judge or jury who hears and rules on the case. These damages will almost certainly be awarded in cases that involve a spouse who has died or who has suffered a severe and life-changing injury through the negligence of another.

As mentioned before, the state of California requires a valid marriage to make any claim for loss of consortium. In fact, the California court states that “absent such a relationship, the right does not exist.”

How a Personal Injury Attorney Can Help

If you have lost your spouse or your spouse has been severely injured in an accident that was not their fault, a personal injury attorney can help. Personal injury attorneys are highly trained and experienced in aiding the victims of wrongful death and/or wrongful injury to seek compensation for their damages. Loss of consortium is a special right in California that is only awarded to spouses. If you are a spouse who believes they qualify for loss of consortium, speak with a personal injury attorney in Sacramento today.