Practical Considerations after Obergefell v. Hodges: Is a loss of consortium claim available for married, same-sex couples?

by Mandy Hicks

same sex marriage loss of consortiumWhen a husband or wife dies or is severely injured as a result of someone’s negligence, the surviving spouse can typically seek damages for past medical expenses, future medical expenses, pain and suffering, lost wages, impairment of earning capacity and what’s called “loss of consortium.” Essentially, loss of consortium is the loss of the loved one’s love, care, services, assistance, and companionship. Loss of consortium seeks to compensate the surviving spouse for the harm endured to the marital relationship. Damages for loss of consortium can be awarded not only in wrongful death cases but also in cases in which a spouse has been severely injured and is unable to provide the love, care, services, assistance, and companionship that the couple enjoyed when both persons were healthy.

Damages for loss of consortium are only available to married couples. KRS 411.145 states that “either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.”

Prior to the United States Supreme Court decision in Obergefell v. Hodges, same-sex couples were not allowed to wed in every state, and states did not have to recognize a lawful same-sex marriage performed in another State. Prior to Obergefell v. Hodges, same-sex couples in Kentucky were not allowed to wed and Kentucky did not have to recognize a lawful same-sex marriage performed in another state. As such, damages for loss of consortium were not available to same-sex couples in Kentucky as they were not able to be legally married in Kentucky.

Post-Obergefell v. Hodges, same-sex marriage is now the “law of the land” in the entire U.S., and it follows that all married couples, not just those of the opposite sex, who are tragically parted by death or their relationship altered by a severe injury, should be able to seek damages for loss of consortium.

While the availability of loss of consortium damages to married, same-sex couples in Kentucky has not yet been addressed by the courts, other state courts have done so. For example, in Sparks v. Meijer, Inc., the Court of Common Pleas in Franklin County, Ohio, addressed the issue of whether or not loss of consortium damages were available to a same-sex couple who were in a committed relationship since 2002 but their relationship was not legally recognized as a marriage until June 26, 2015.  The defendant argued that loss of consortium damages were not available to the couple as they were not legally married at the time of the injury which occurred on June 22, 2013. The Court ruled that a claim for loss of consortium was available to the plaintiffs as there was sufficient evidence that they would have been married in Ohio in 2010 had they been legally able to do so.

Married, same-sex couples should consult an attorney who is willing to fight for their right to seek loss of consortium damages in personal injury and wrongful death cases as Kentucky courts have not yet addressed the future of this claim in a definitive opinion.

Further, like pain and suffering, loss of consortium is hard to place a specific dollar amount upon. How a judge and jury see the value of a marital relationship will depend on many factors. Pursuing a claim for loss of consortium requires a careful examination of all aspects of the marital relationship and you must pick an attorney that will be able to demonstrate the value of your relationship to a judge and jury.

If you or your spouse was injured in accident, please contact English, Lucas, Priest and Owsley at (270) 781-6500 for a free consultation.