Unmarried partners run a great risk in the event one of the partners loses his or her life from a wrongful death. Each state establishes its own laws as to marriage and inheritance and while there may be a handful of states that still recognize “common-law” marriage, even those states have laws relating to how such status can be obtained and maintained. When someone dies by circumstances caused by the tortious actions of another, and a wrongful death suit needs to be filed, the plaintiff must first be recognized by the court as having standing to do so. In a lawsuit, the plaintiff is typically the spouse or next-of-kin or possibly a trustee for minor children if there is no adult next-of-kin.
Unmarried partners are free to leave their possessions to one another via a Will or other ownership or estate planning documents. But the surviving, unmarried partner will have an extremely difficult time overcoming the standing of a blood relative if the blood relative chooses to file a legal action. There may even be a situation where the unmarried partner wishes to file a lawsuit and a blood relative declines to do so. Again, the unmarried partner is at a distinct disadvantage in this situation. And even if the court allows an unmarried partner to bring a lawsuit, it will also certainly require extensive measures to be taken to determine whether any blood heir(s) can be located.
One might also take a moment to consider divorce as it relates to this topic. In most states, a divorce judgment entered by the court can be set aside or challenged for a specific amount of time. In states with those laws, the judgment is not final until that period of time expires, and should someone die during that time period, it may be possible for the surviving spouse to have the divorce decree set aside. In today’s society, where people sometimes move from one relationship to another without tying up all the loose ends, cohabiting with someone who is married to someone else is not a good way to protect one’s interests in the event of an unforeseen, future lawsuit.
While the rights of an unmarried partner are limited at best, one must also note that our society is constantly evolving and by and large, the laws of the states catch up with social norms. Perhaps one day we will each be able to complete a Wrongful Death Directive and assign the right as a stand-alone option. But, until then, one should always consult with a wrongful death lawyer to know what rights one may have when a loved one dies. Often, attorneys are able to find pathways to recovery that might not be immediately obvious. Attorneys who understand trends in the law and the courts in which they practice can explain what rights are available to an unmarried partner in his or her home state as well as explore other areas of the relationship which could lead to a standing recognizable in a court of law.