Injured - The FindLaw Accident, Injury and Tort Law Blog

Do You Need to Be Married to File a Wrongful Death Claim If Your Partner Dies?

Wrongful death lawsuits allow surviving spouses and family to recover financially when a spouse or family member dies due to the negligence or intentional act of another. Wrongful death laws will vary from state to state, but will typically only allow immediate family members, or next of kin, to file the claim. This often results in unmarried individuals being unable to recover for wrongful death claims.

The common exception to this involves states that allow registered domestic partners, which used to be common for same-sex couples prior the nationwide legalization of same-sex marriage. However, frequently, older couples will register as domestic partners rather than re-marry after a divorce, or a prior spouse died, for a wide variety of social and economic reasons.

Being Married Before Death Matters

While wrongful death laws may feel harsh for an unmarried surviving partner, lawmakers and courts have recognized that marriage, or domestic partnership, is a significant step in a couple's relationship. Until a couple takes that step, legally, they are not considered family members. Since wrongful death statutes are meant to compensate family members of the deceased, only legally recognized family will be able to recover. This means that the child of an unmarried couple would have the right to recover for wrongful death, while the unmarried surviving parent would not.

However, some jurisdictions will make exceptions for individuals that believed they were married, such as California's putative spouse exception, or if there was a valid common law marriage. These are relatively rare circumstances, but some states will allow an unmarried person who held a good faith belief that they were in fact married to the deceased to bring a wrongful death action.

The Deceased's Estate and Will

In many states, in addition to the wrongful death claim, a deceased individual's estate may still be able to pursue a claim for the underlying injury that led up to the death as well as pain and suffering. When this occurs, the estate can recover for the personal injury, and add those funds to those that will be distributed by the estate. If the deceased provided for an unmarried partner in their will, then the unmarried partner may end up with a larger share of the estate as a result of the posthumous personal injury action.

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