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  • Writer's picturePhil Griffis

Supreme Court's Same Sex Marriage Decision Opens a Brave New World of Texas Personal Injury Claims

The United States Supreme Court’s decision in Obergefell v. Hodges legalized same sex marriages nationwide. Obergefell requires all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other states.  As a result, married gay and lesbian couples now enjoy equal protection under state laws protecting accident victims. Lawyers in all fields are considering how the decision will affect their clients. An immediate effect of the decision, for Texas personal injury lawyers, is that a same-sex spouse will now have standing to sue for the other spouse’s wrongful death, caused by the negligence of another person or business.

The Texas Wrongful Death Act allows certain family members to sue for the wrongful death of their “spouse”, child or parent.  The Act doesn’t define the word “spouse”.  But old court decisions say that the term includes spouses by “formal” marriage (license obtained from a clerk and a ceremony), common-law spouses, separated spouses and even a spouse that remarries after the wrongful death.

The historic reason for denying Texas same-sex couples standing to sue for wrongful death was the Texas Family Code marriage license provision, which states that a license may not be issued for the marriage of persons of the same sex. That statute is still on the books, but the Supreme Court’s decision all but eliminates it as a valid law.  Following the Supreme Court’s decision, most Texas clerks began issuing licenses for same sex marriages, as required by the decision.  So it seems clear that a legally married gay or lesbian can now sue for a future accident that causes the death of his or her spouse.  Hopefully many years will pass before this has to happen.

A more difficult question is whether a same sex spouse, previously married in another state, can now sue in Texas for a wrongful spousal death occurring prior to the Obergfell decision.  If the couple was previously legally married in a state recognizing same sex marriages, but one spouse died due to a negligent act occurring prior to the Supreme Court’s decision, then the argument would be that the decision would bar a Texas court from denying the survivor the right to now file a suit in Texas, even though Texas did not recognize same sex marriages at the time of the death.

The decision should also pave the way for Texas same-sex spouses to sue for the “loss of consortium” caused by a non-death producing injury to the other spouse.  “Loss of consortium”, in the legal term for the negative consequences to a marriage, caused by an injury to one of the spouses.  Often one spouse sue for injuries caused to the other, claiming that the injury caused the non-injured spouse mental anguish and the loss of “companionship and society”.  So same sex couples should now have the same right to sue for this.

I expect that some defendants will find ways to challenge these arguments, probably taking the position that the intent of Wrongful Death Act was that it was to apply only to “traditional marriages”.  I don’t expect these challenges to have much traction.  And it seems clear that the Supreme Court’s decision has opened the door to an expansion of Texas personal injury cases.


Phil Griffis obtained his first jury verdict in 1990, when he convinced a jury that a customer’s fall at his client’s store did not cause the customer’s aspiration pneumonia and stroke. In the years since he has continued to win in courtrooms across the State of Texas.

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