Miami, FL (Law Firm Newswire) July 1, 2015 – The recent historic Supreme Court ruling granting marriage equality across the U.S. has far-reaching implications, including access to claims and benefits by same-sex married victims. Married gay and lesbian couples currently have equal protection under state laws that safeguard tort victims.
The personal injury Lawyers of Chalik & Chalik stated, “This new ruling will ensure that same-sex married victims have the same access to claims and benefits as heterosexual married victims, and will therefore receive equal treatment and protection under the law.”
Prior to this landmark decision, same-sex unmarried couples did not have standing to file a lawsuit for damages arising out of the death or serious injury of their life partner due to another person’s tortious conduct. The denial of such benefits also applied to same-sex couples whose marriages were not recognized in the state in which they lived. One reason that a same-sex couple was unable to sue for such damages is that in some states, such as Florida, a “survivor” is defined as the decedent’s spouse. This definition is mentioned in the Florida Wrongful Death Act. In addition, an unmarried partner could not bring a claim for loss of consortium.
However, in light of the new ruling, a survivor of a same-sex marriage may file a lawsuit as a surviving spouse, and recover such damages as pain and suffering, loss of companionship and protection, and loss of support and services. Moreover, if the decedent dies without having made a will, the same-sex spouse, who is the surviving spouse, can now be appointed as the personal representative of the deceased spouse’s estate. Only a personal representative can file a wrongful death claim. The only caveat is that a wrongful death claim must be filed within the statute of limitations for bringing such claims. In Florida, one has two years from the date of death to file a wrongful death lawsuit.
Similarly, consider the personal injury cases affecting same-sex couples who were married in a state that did not recognize same-sex marriages. Because of the recent decision, the married gay or lesbian plaintiff can now amend the personal injury lawsuit to include a loss of consortium claim.
However, a more challenging issue is one in which the surviving spouse of a same-sex marriage files a loss of consortium claim due to an injury that occurred when they were not yet married. The states differ as to whether marital status can be granted retroactively in order to file personal injury claims.
Chalik & Chalik Injury Lawyers
28 W Flagler St, #1000
Miami, FL 33130
Phone: (305) 944-2035