What You Need to Know About Same-Sex Marriage and Wrongful Death Claims

By Michael GrossmanOctober 23, 2015Reading Time: 4 minutes

Before the Supreme Court declared gay marriage to be a fundamental right in June, one of the arguments put forward by those who wished to legalize same-sex marriage was that it would extend the benefits of marriage to homosexual couples; Benefits like health care, inheritance, and child custody rights have been pretty thoroughly covered in the media since then.

An important aspect of legalized same-sex marriage that has escaped notice is that same-sex partners now have standing to hold individuals and companies legally and financially accountable in the event that their partner is killed; same-sex couples can now sue for wrongful death.


Questions answered on this page:

  • How does common law or informal marriage apply to same-sex couples?
  • Do common law same-sex marriages give a same-sex widow(er) standing to pursue a wrongful death claim?

In Texas, the only individuals who have standing to file a wrongful death claim are the parents, children, and spouse of a deceased person. Siblings, cousins, grandparents, and domestic partners are unable to legally press a wrongful death claim. Before Obergefell v. Hodges, same-sex couples were considered domestic partners, a relationship that is social, not legal. Obviously, in the wake of the Supreme Court's decision regarding gay marriage, going forward all newly married same-sex couples will have the same standing to file wrongful death claims as heterosexual spouses.

One of the more overlooked consequences of legalized same-sex marriage that is especially interesting in the eleven states, which have some form of common law marriage, is that many same-sex couples may already be considered married under the common law. That is to say, for those couples who were fulfilling all of the elements of common law marriage but were not considered to be common law married because gay marriage was not recognized as legally valid in many places, they now have legally recognizable common law marriages.

To use Texas as an example, common law marriages have three components

  • The couple must agree to be married.
  • They must live together as husband and wife.
  • And they must have told others that they are married.

Historically, any heterosexual couple who acted in that fashion was, for all intents and purposes, married under common law. What is interesting is that, even though common law marriage has always existed as a legal status for heterosexual couples under Texas law, it has never been widely embraced by the straight community. Obviously, the reason for this is that most heterosexual couples who desired to get married could easily do so. As such, it's quite rare for heterosexual couples to portray themselves as husband and wife absent a formal wedding.

The exact opposite has long been true for gay couples. Since the option of having a legally recognized marriage didn't exist under Texas law until the arrival of the Supreme Court's decision, pretty much the only option available to same-sex couples was to consider themselves married in their hearts and profess themselves married to other people, even if doing so had no impact on their legal status. Well, unintentionally, this common practice means that, now that same-sex couples can be legally married, they're already doing all of the things necessary to establish a common law marriage. So, congrats, thousands of same-sex Texas couples, you're already common law married, whether you knew it or not.

A same-sex wedding performed before the Obergefell decision, satisfies requirements one and three of the common law statute. While it is true that same-sex couples cannot literally live together as husband and wife, to satisfy the second condition, a reasonable reading of Obergefell would hold the statutory language to be discriminatory and substitute a broader definition of husband and wife (It is possible that a court could strike down the whole portion of the Texas family code that defines an informal marriage, but that is extremely unlikely). As a result, it is reasonably certain that same-sex couples who had commitment ceremonies, then lived together as husband and wife satisfy all the requirements for a valid common law marriage under Texas law. Even without a public ceremony, as long as the couple has informed, friends, family, co-workers, really anyone in the general public, then they most likely already have valid common law marriages.

If same-sex common law marriages are valid (and we're pretty sure they are) that means that if one of those partners has been killed in a wrongful death accident within the past two years, the surviving partner now has standing to file a wrongful death claim. Claims older than two years are probably no longer valid due to the statute of limitations. The surviving partner would have to prove the common law marriage's validity with wedding photos, invitations, bills at the same address, or just about any way you could think of to show that they were living together as a married couple. After that, the case would proceed in the same way as any other wrongful death claim.

Sidestepping any controversy regarding same-sex marriage, no one can deny that a same-sex partner's loss in terms of companionship, affection, and emotional suffering is every bit as real as that of the survivor of a heterosexual couple, who lost their partner. In the end, gay and lesbian partners have a new tool at their disposal, which the rest of us have possessed for some time. As a firm that helps families pursue their wrongful death claims, we see the toll that wrongful deaths take on families on a daily basis. However you feel about the larger issue of same-sex marriage, it can only be welcome that a person's loved one would have an additional legal remedy to makes things right in the event of a wrongful death.