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Modern Family Configurations and Loss of Consortium Claims in Personal Injury Cases

Posted by: Valerie Yarashus

According to the U.S. Census Bureau, the number of cohabiting unmarried partners increased tenfold between 1960 and 2000.  Many of these relationships are long-term, stable and committed relationships.  Currently, approximately 40% of children are expected to live in a cohabiting household at some point in their lives. In addition, the number of children being raised at least partly by a step-parent has risen dramatically; 1300 new step-families are being formed every day. Taking all groups of non-traditional families into account, less than half of U.S. kids (46%) are living in a “traditional” family with two heterosexual, married parents their first marriage.

When one person suffers an injury due to someone else’s negligence in Massachusetts, his/her spouse and minor children have a right to their own separate claim for all the ways that their relationship with the injured person was affected.  See Olsen v. Bell Tel. Lab., Inc., 388 Mass. 171, 176 (1983), citing Diaz v. Eli Lilly & Co., 364 Mass. 153, 165 (1973) and Ferriter v. Daniel O’Connell’s Sons, Inc.  381 Mass. 507 (1980). This is called a “loss of consortium claim”.  Under Massachusetts case law, this includes “loss of companionship and society; loss of comfort, solace or moral support; any restrictions on social or recreational life; and basically any deprivation of the full enjoyment of the marital or parent-child relationship.”  In the case of marriage, it also includes any loss of enjoyment of sexual relations or ability to have children.

But what happens to those “loss of consortium claims” in cases under Massachusetts law when there is a modern, non-traditional family configuration?

  1.  Married at the time of the injury but divorced or in the process of divorcing at the time of the settlement or trial – In theory, the divorcing spouse will have a potential claim for loss of consortium, but many people will choose not to pursue this claim.
  2. Not married at the time of the injury but now married at the time of settlement or trial – No loss of consortium claims, unless legally married at the time the cause of action accrues. Feliciano v. Rosemar Silver Co., 401 Mass. 141,142 (1987).
  3. Long-term cohabitating partners who are unmarried – No loss of consortium claims. Feliciano v. Rosemar Silver Co., 401 Mass. 141,142 (1987). This was upheld even when the couple  lived “as a de facto married couple” for approximately twenty years and “had joint savings accounts, filed joint tax returns, jointly owned their home, depended on each other for companionship, comfort, love and guidance, and maintained a sexual relationship to the exclusion of all others.”  See also Fitzsimmons v. Mini Coach Boston, Inc. 440 Mass. 1028 (2003).
  4. Same-sex couple not married at the time of the injury – No loss of consortium claim. In Massachusetts, the gender of the partners has no effect on whether or not consortium claims exist; the sole criteria is legal marriage at the time of the injury (even when there was no legal right for a same-sex couple to marry).  Charron v. Amaral, 451 Mass. 767, 773 (2008).
  5. Minor, dependent biological or adopted children under the age of 18 – Loss of consortium claims may be brought. G.L. c. 231, sec. 85X; Leibovich v. Antonellis, 410 Mass. 568, 576-80 (1991).
  6. College-age children (ages 18 – 21 at the time of injury) – Unless special circumstances like disability are present, no loss of consortium claims exist. Mendoza et al v. B.L.H. Electronics, 403 Mass. 437 (1988).
  7. Adult children – Unless special circumstances like disability are present, no loss of consortium claims exist, even if the adult child has become the caretaker of his/her injured parent, due to the injury.
  8. Handicapped adult children – Handicapped adults who are physically, emotionally and financially dependent on the injured parent may recover for loss of consortium. Morgan v. Lalumiere, 22 Mass. App. Ct. 262, 270 (1986); G.L. c. 231, sec. 85X.
  9. Step-children and step-parents – Unless the step-child has been adopted, there is probably no loss of consortium claim.
  10. Sibling – No loss of consortium claim exists, even when the sibling has become the caretaker of the injured person.  Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 664 (2003).

This overview is not intended to provide legal advice; consult with your attorney if you are wondering whether any of this applies to your case.  The laws dealing with wrongful death cases are different, and will be the subject of a future article.

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