When Can You Sue For The Wrongful Death Of Your Same-Sex Spouse?

If you've recently suffered the untimely and unexpected loss of your spouse due to another person's negligence or careless behavior, you're likely wondering how you'll ever be able to pick up the pieces and move on with your life. While a wrongful death lawsuit can be one way to recover some of the financial costs you've incurred (and the losses you'll suffer in the future), your ability to file as a same-sex spouse could be challenged if your state still has traditional marriage laws on the books. Read on to learn more about how state marriage laws could potentially impact your ability to file a wrongful death lawsuit, as well as how you should proceed if you do have standing to sue for the untimely death of your spouse.

How can state laws prohibiting same-sex marriage impact wrongful death lawsuits? 

Prior to the June 2015 U.S. Supreme Court opinion in Obergefell v. Hodges, many states had laws (or even constitutional provisions) prohibiting marriage between same-sex couples. As a practical matter, this meant that even if you and your spouse married in a state that recognized same-sex marriages as legal, your home state could decline to recognize your marriage or extend to you and your spouse the legal protections provided to opposite-sex spouses. 

In most states, the protections extended to legally married persons include the ability to file a wrongful death lawsuit against a person or corporation responsible for the actions or circumstances leading up to a spouse's death. Those who lived together without being married or who were legally married in another state but lived in a state that didn't recognize same-sex marriage prior to Obergefell v. Hodges could find themselves without standing to sue if the spouse died while same-sex marriage was still illegal.  

One Alabama man recently challenged a state law governing standing of wrongful death plaintiffs and was able to recover proceeds from the 2011 death of his spouse -- even though their marriage had never been legal in Alabama. The state appeals court held that because Alabama's law prohibiting same-sex marriage was unconstitutional, the state should have legally recognized the 2011 marriage between the plaintiff and the deceased individual and therefore the plaintiff spouse (not the victim's mother) had rightful title to the proceeds from the wrongful death lawsuit. An amended marriage certificate was issued once the state's law was declared unconstitutional, giving the surviving spouse all the rights he should have had under law since 2011. 

This means that if you and your spouse were married in a state that recognized same-sex marriage as legal, you should be able to successfully challenge any claims that you lack standing to sue -- even if your spouse passed away before your state ever recognized same-sex marriages as legal. Depending upon the number of precedent-forming cases in your state, you may need to litigate the constitutional claim separately, establishing that you do have standing to sue before your wrongful death lawsuit is filed. 

How should you proceed if you think you have a valid wrongful death claim? 

Wrongful death lawsuits are a type of civil tort lawsuit. In order to recover on a wrongful death claim, you'll need to establish a few factors. 

First, you'll have to be able to show that the person or entity responsible for your spouse's death owed your spouse a certain duty of care. For example, the responsibility owed to your spouse by a doctor or nurse who has been assigned his or her care is much different from the responsibility of a passerby on the street. Setting forth the level of care required and then showing that the person in question breached this duty -- and that this breach directly led to your spouse's death -- should be enough to establish liability.

Once you've provided the evidence required to show that the person in question was legally responsible for your spouse's death, you'll next need to show damages. Compensatory damages are available to help compensate you for the financial losses stemming from your spouse's death -- like medical bills, funeral expenses, and lost wages. Punitive damages are not based on any costs you've incurred, but are instead designed to punish the defendant and deter future irresponsible or negligent behavior. In many cases, punitive damages assessed far exceed the amount of compensatory damages awarded, although some states will place a dollar cap on the amount of punitive damages that can be recovered in any specific case. 

For the best results, work with an experienced wrongful death attorney from a firm like Bangel, Bangel, & Bangel