Loss of Consortium Claim for a Spouse After an Injury

When one spouse is seriously injured, the other loses things the law recognizes as having value: the companionship and society of their husband or wife, affection and comfort, help with the household and the children, moral support, and the sexual relationship. The uninjured spouse did not suffer the injury, but they suffered its consequences in the marriage, and loss of consortium is the claim for those consequences. It is the spouse's own claim, brought in their own name, with its own damages.

The claim is for the loss, not for the spouse's distress at seeing the injured person suffer, which most states do not compensate separately except in narrow bystander circumstances. It covers the period of the injury's effect, which for a temporary injury is months and for a permanent one is the rest of the marriage, and it is valued accordingly. In a catastrophic injury case, where the injured spouse requires care and the marriage is transformed, the consortium claim can be substantial.

Most states limit the claim to legally married spouses at the time of the injury. A person who married the injured person after the injury has no claim, and unmarried cohabiting partners, however long the relationship, generally have none, with a few states and specific circumstances as exceptions. Registered domestic partners and same-sex spouses have the claim where their status is recognized, which after nationwide marriage equality is everywhere for spouses.

A minority of states allow parents to recover for the loss of a minor child's society and companionship when the child is seriously injured, and a minority allow children to recover for the loss of an injured parent's care, guidance and companionship; the two groups of states overlap only partly, and most states allow neither. Where the claims exist they are valued as the spousal claim is, on the severity and permanence of the injury's effect on the relationship.

In death cases, the loss of a spouse's, parent's or child's companionship is compensated through the wrongful death statute rather than through a consortium claim, and the statute defines who may recover and what; the elements are similar but the procedure is the statute's. A consortium claim for the period between a serious injury and a later death from it may exist alongside the death claim in some states.

Because the claim is derivative, it depends on the injured person having a valid claim. If the injured spouse's claim is barred, by the statute of limitations, by a release they signed, by workers' compensation exclusivity against the employer, or by a finding of fault above the state's bar, the consortium claim is barred too, and if the injured spouse was partly at fault, the consortium damages are reduced by the same percentage in most states.

Suppose your husband suffered a spinal cord injury in a crash caused by a drunk driver, leaving him paraplegic. His claim for the injury was large and was the center of the case. You left your job to care for him, the household responsibilities fell to you, the physical relationship ended, and the companionship of an active marriage was replaced by the roles of caregiver and patient.

Your consortium claim was brought alongside his in the same lawsuit, against the driver and, under the state's dram shop law, the bar that served him. You testified to the marriage before and after; his treating physicians addressed the permanence of his condition; and a life care planner's projection of his needs described the household's future. The defense deposed you about the marriage, as it was entitled to, and the questions were intrusive, which your attorney had prepared you for.

The case settled at mediation with the consortium claim valued separately from his injury claim, as a significant component, reflecting a permanent transformation of a long marriage. All figures are hypothetical; a consortium claim of that significance arises in catastrophic cases, and in a moderate injury case with full recovery the claim is small or not brought.

The claim has costs as well as value, and attorneys weigh them with the couple.

• Consider the injury's effect on the marriage and its duration; a claim is worth bringing when the effect is significant and lasting, and is often not brought for an injury that resolved in months.
• Understand that bringing the claim opens the marriage to discovery: the defense may ask about the relationship before the injury, counseling, separations, intimacy and conflicts, in writing and at deposition.
• Expect the uninjured spouse to be deposed and, at trial, to testify about the marriage in open court.
• Know that the claim is reduced by the injured spouse's share of fault and barred if the injured spouse's claim is barred.
• Know that the claim is usually paid from the same policy limit as the injured spouse's claim, so in a limits case it may not add to the total recovery.
• Bring it in the same lawsuit; many states require it, and the deadline is usually the same as the injured spouse's.
• Document the changes in the household: the care provided, the help lost, the activities abandoned; it is the evidence of the claim.

Spousal loss of consortium is recognized in nearly every state, by case law or statute, with a few states limiting or abolishing it; the elements are similar everywhere. Parental consortium for an injured minor child and filial consortium for an injured parent are recognized in a minority of states each, and the lists differ. Unmarried partners have no claim in most states, with limited exceptions.

Procedure varies: most states require or strongly prefer that the consortium claim be joined with the injured spouse's claim in one lawsuit, and some treat the two as a single claim for purposes of policy limits and settlement. The deadline is usually the same as the injured spouse's, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina, though a few states give the consortium claim its own period. Damage caps on non-economic damages in some states apply to consortium claims, and some caps treat the spouses' claims as one for the cap.

In no-fault states, the consortium claim depends on the injured spouse meeting the threshold, since it is derivative of a claim that exists only above the threshold. In workers' compensation, the consortium claim against the employer is barred along with the injured worker's claim, but survives against third parties.

The evidence is the spouses' own accounts of the marriage before and after, supported by the medical records of the injury's effects, by family members and friends who observed the change, and in significant cases by a therapist or counselor the couple has seen. The uninjured spouse's testimony is the heart of it: what the marriage was, what the injury did to it, and what the future holds. Attorneys prepare it carefully, because it is personal and because the defense will probe it.

Valuation has no formula. The factors are the severity and permanence of the injury's effect, the length and quality of the marriage, the ages of the spouses, the household help and support lost, the change in the physical relationship, and the caregiving burden the uninjured spouse has assumed. Insurers value consortium claims modestly in ordinary cases and substantially in catastrophic ones, and juries do the same.

The claim is paid from the same source as the injured spouse's claim, usually the at-fault party's policy, and in a case limited by the policy it competes with the injured spouse's claim for the same money. Where coverage is ample, or where the defendant is a business or a government body with higher limits, the consortium claim adds to the total recovery.

A loss of consortium claim is the uninjured spouse's own claim for what a serious injury did to the marriage, brought alongside the injured spouse's claim, valued on the injury's permanence and effect, and weighed against the discovery it invites. The questions to answer early are whether the state recognizes the claim for your relationship, whether the injury's effect on the marriage justifies it, and whether the coverage makes it worth adding. Most personal injury attorneys work on contingency and advise couples on this routinely.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If your spouse was seriously injured by someone else's negligence, you can request a free claim review.

• Car Accident Claims in the United States: The Complete Guide
• Medical Malpractice Claims: Standard of Care, Deadlines and Damages
• Wrongful Death Claims: Who Can File, Deadlines and Damages
• Accident in a Borrowed Car: Whose Insurance Pays
• Accident on Icy Roads or in Bad Weather: Who Is at Fault
• Airbag Did Not Deploy in a Crash: Can You Sue, and Whom?
• Amputation Injury Claim: Prosthetics and Lifetime Costs
• At Fault in a Car Accident? Comparative Negligence Explained
• What Is the Average Car Accident Settlement? What Sets the Value

Need local rules? Choose your state from the injury law guides hub or read the statute of limitations by state.