Benefits for Same-Sex Spouses in Personal Injury Cases in Virginia

By Cory Bilton.

Supreme Court - 2

Same-sex couples were allowed to legally marry in the Commonwealth of Virginia this week. In a historic, but understated move, the Supreme Court denied certiorari on all of the same-sex marriage appeals as mere line items on an 89 page list without explanation. Later that same day, the 4th Circuit issued a mandate that the previous 4th Circuit opinion, finding that Virginia’s ban on same-sex marriage impermissibly infringes on its citizens fundamental right to marry, was to take effect immediately. Same-sex couples all over Virginia were getting married by Monday afternoon. (Please accept my personal congratulations to everyone that got hitched in Virginia this week.) With legal recognition comes many new legal entitlements and obligations. Here are some of the new benefits and obligations same-sex couples will enjoy in personal injury cases and in civil litigation in Virginia.

Insurance Coverage

Insurance policies often extend coverage to spouses automatically or provide for discounted extended coverage for spouses. As I discussed in my blog post last year after the Windsor decision, insurance policies often do not define the word spouse. The legalization of same-sex marriage here in Virginia leaves little doubt that using the word “spouse” in the insurance policy means both opposite-sex spouses and same-sex spouses. Newly married couples should read over their policies to see which coverages extend to their spouse, looking for any gaps or unnecessary duplication. For example, automobile insurance in Virginia automatically covers spouses that live in the same household, both in life and in the event of one spouse’s death. As I’ve learned over time, it always pays to be smart about your insurance.

Testimony in Ligitation

Spouses are generally afforded more privacy rights than unmarried couples. One of those extra rights is called the spousal communications privilege. The basic idea is that some communications between spouses is confidential, even in court. As both codified in Virginia law and the Virginia rules of evidence (see rule 2:504), “[i]n any civil proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communications between his spouse and him during that marriage. . . .” This privilege means that generally speaking, your spouse can’t reveal private conversations with you when called as a witness in litigation if you don’t want them to share.

Wrongful Death Benefits

When someone dies because of someone else’s negligence in Virginia, those close to the decedent have a right to bring a wrongful death action to recover damages. Any damages awarded through this action are to be specifically awarded to certain beneficiaries laid out in Virginia Code § 8.01-53. Listed first among those beneficiaries is the surviving spouse. While there can be many different combinations of beneficiaries that would share in the wrongful death proceeds, the group is generally made up only of “any person that is related to the decedent by blood, marriage, or adoption . . . .” Just like the expanded insurance coverage available to same-sex couples who marry, the availability of the wrongful death remedy can make a significant difference when something goes wrong.

Spousal Liability for Emergency Medical Care

The law is made up of both rights and responsibilities; the good and the bad. So it goes that same-sex couples who marry won’t only see benefits from the law, but also liabilities. One of these liabilities is that spouses who live together in Virginia are jointly and severally liable for any emergency medical care provided to either of them. This means that if your wife or husband is hurt and goes to the ER, you on also on the hook to pay their hospital bill. In some ways, this aligns with the commonly held belief that married couples are responsible for each other. But it can produce harsh consequences for couples that lack insurance and incur huge hospital bills after a serious accident. Health insurance is a key antidote to these unexpected costs. Make sure you and your spouse are covered, and if not, get insurance through the government exchange.

Conclusion: Spouses Should Learn About Their Legal Rights

Prior to this week, same-sex couples could only hope that one day they would be able to marry in Virginia. Now that time has come. Same-sex couples can now enjoy all of the same legal rights and responsibilities as every other married couple in Virginia. While nothing I’ve outlined here is new, it is newly applicable to same-sex couples who have married in Virginia or intend to do so. These new benefits may seem narrow, but they can be hugely important if you or someone you know is injured or becomes involved in civil litigation in Virginia.

Please review my disclaimer.