Loss of consortium claims for same-sex couples: Equal protection under the law?

Posted in Accident & Injury on April 22, 2015

In some states, married same-sex couples cannot receive benefits from personal injury claims that are afforded to married opposite-sex couples.

On April 28, 2015, the U.S. Supreme Court heard oral arguments in the matter of Obergefell v. Hodges, one of four state cases[1] related to same-sex marriage scheduled before the nation’s high court this session. The petitioners in Obergefell asked the justices to decide whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Why does it matter?

You may wonder what same-sex marriage has to do with a personal injury claim. Under Ohio law, marriage provides couples with a myriad of legal rights such as favorable tax treatment, presumed parentage, and the right not to testify against a spouse in criminal proceedings. Also included among rights afforded to married couples is the right to make a legal claim in certain cases, specifically, where a spouse has been injured or killed.

In 2004, the people of the State of Ohio adopted Ohio Issue 1, an amendment to the Ohio Constitution, which provided that Ohio would refuse to recognize the validity of same-sex marriages even if they were valid in the state where the marriage was performed.

Loss of Consortium and Wrongful Death Claims

In a personal injury claim, damages for loss of consortium cover the losses one spouse experiences when the other is injured as a result of the defendant’s negligence or other wrongful acts. Loss of consortium damages may include damages for loss of services, damages for loss of support, and damages for loss of quality in the “marital relationship,” which includes things like providing affection and emotional support.

If the injured spouse dies from his or her injuries, the surviving spouse may also file a claim for wrongful death and seek monetary compensation for loss of support that roughly equals what the injured person would likely have made, had he or she not died prematurely.

Can I file a same-sex Loss of Consortium claim in Ohio?

Each state has its own limitations on the availability of loss of consortium and wrongful death claims. In most jurisdictions, for example, in order to bring a claim for loss of consortium, you will need to show that a valid marriage exists. Under current Ohio laws, same-sex couples are unable to benefit from a loss of consortium claim or wrongful death action.

While no one knows how the Supreme Court will rule, many same-sex couples are hopeful the state cases will follow the Court’s decision in United States v. Windsor[2], which ordered the federal government to recognize the validity of same-sex marriages entered into in the states that allow them.

The audio recording and written transcripts of the oral arguments for Obergefell v. Hodges and consolidated cases can be accessed directly through links on the homepage of the Court’s Website: www.supremecourt.gov.”

Same-sex marriage laws by state

Click a state for details. (Data current as of April. 2, 2015.)