Rights of Unmarried Couples to Personal Injury Claims in Virginia

The definition of marriage and rights of couples have dominated the news with the recent Supreme Court decisions regarding the federal Defense of Marriage Act (DOMA) and California Prop 8.  The decision brings up very strong feelings on both sides.  It also gives me a good excuse to comment on the implications of marriage in a personal injury lawsuit including automobile injuries, medical malpractice, and nursing home claims.

When someone is injured it impacts the whole family.  Think of the parent who is unable to work, do their share of household responsibilities, take kids to soccer practice, help with homework etc.  The whole family has to pick up the slack and in many cases the family has to do without things only the injured family member could provide.  In some states, each family member would have a claim for loss of consortium.  However, Virginia expressly does not allow loss of consortium claims.

Now to address the issue of marriage.  In a wrongful death case, a husband or wife can recover for the loss of their spouse.  That includes compensation for grief, loss of emotional and financial support, etc.  However, Virginia law has a restrictive definition of a spouse.  Virginia does not recognize common law marriage (couples living together).  Virginia does not recognize civil unions or same sex marriage.  I've carefully read the DOMA decision and it does nothing to change Virginia law.   One other point, a fiance (even within hours of the getting married) has no claim under Virginia law for the death of their soon to be spouse.  Legally, until the knot is tied, fiances are strangers to each other.

In many cases, this creates very painful and unjust results.  It is one area where Virginia law however is inflexible and will not bend even due to very compelling circumstances.