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This past summer, Justice Kennedy, de-livering the United States Supreme Courtopinion in Obergefell v. Hodges1 upholdingthe right of same-sex persons to marry,called the identification and protection offundamental rights “an enduring part of thejudicial duty.” Among the privileges thatmarriage now affords same-sex couples isdamages in tort suits where one partner hasbeen injured or killed. We have come a long way. The com-mon law imported from the English systemin 18th century America prohibited anyonefrom recovery for the death of another,however wrongful. “[I]n civil Court, thedeath of a human being could not be com-plained of as an injury.”2 When the EnglishColonies became the new United States,some states ignored the English rule, allow-ing money damages where masters, hus-bands and fathers sued for recovery of theeconomic loss suffered through the deaths

of servants, wives or children. Other states,while allowing suits arising out of injury bynegligent conduct, prohibited suits fordamages when someone died as a result.Putting aside the bad public policy that en-couraged negligent parties to “finish thejob,” rather than just injure someone, thebasis upon which a court might grant relief,if at all, for a wrongful death was hard to de-cipher. With differences among the statesproliferating, in early America where youdied mattered. Beginning in the mid-19th century, leg-islatures responded to the chaos by adoptingwrongful death statutes. Each state harmo-nized, or created, legislatively what the courtshad not. The statutes shared commonalities:defining the length of time a survivor had inwhich to file a wrongful death lawsuit, speci-fying the types of recoverable damages and,importantly, delineating who could benefitfrom the proceeds of the lawsuit.

From about 1840 onward, states gen-erally adopted wrongful death statutes thatprotected close family: surviving spouses,children, and, sometimes, parents. Thecommonality was that legislatures aban-doned earlier court rulings that compen-sated males for loss of services they, assurviving masters, husbands or fathers en-dured when a slave, a wife or a child waslost to the male’s small economic unit.Instead, lawmakers created causes of ac-tion allowing recovery for those who wereeconomically dependent on the personwho died. Not surprisingly, the initialscope was narrow. Women and childrencould recover for the deaths of husbandsand fathers because of their economic de-pendency arising from the duty that amale owed to support his wife and chil-dren. Men, on the other hand, couldclaim no such right for the loss of a wife orchild.

50 STATES.50 WRONGFUL DEATH STATUTES.

Why Where You DieMatters (Still).

Paul F. Ebeltoft and Olivia Krebs Ebeltoft . Sickler . Lawyers

(INSERT STATE HERE)

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As time passed, courts and legislatureshave reshaped wrongful death statutes inways to reflect economic and emotional re-ality. A wrongful death action by one spousefor the death of another is now universallyrecognized, regardless of the gender or ofthe economic dependence or independ-ence of the survivor. So too, courts, voters and legislatureshave moved, albeit more slowly, to craft abroader, more inclusive definition of “fam-ily.” By 2015, 16 states and the District ofColumbia recognized the validity of a same-sex union and, correspondingly, the right ofthe same-sex family member to recoverwhen his or her partner died due to negli-gence. Then Obergefell made same-sex mar-riage the law of the land. But there areother non-traditional family arrangementsyet to be considered. And with respect tothese, the laws in the various states differdramatically. In terms of recovery in wrong-ful death actions, it still matters where somepeople die.

COMMON LAW MARRIAGE In 14 states and the District ofColumbia3, when a couple lives together thecouple may have a common law marriageeven though the couple has not obtained amarriage license and no civil or religiousmarriage ceremony has been performed.Each of these jurisdictions has specific rulesfor the behavior required for a couple toperfect a common law marriage. In four of these states4, the common lawright is effective only prior to a given date. Inother states, like Texas, for example, an infor-mal marriage is recognized where the couple“agreed to be married and after the agree-ment they lived together in this state … andthere represented to others that they weremarried.”5 In New Hampshire “[p]ersons co-habiting and acknowledging each other ashusband and wife, and generally reputed tobe such, for the period of three years, anduntil the decease of one of them, shall there-after be deemed to have been legally mar-ried.”6 In Montana, the statute simply reads“[c]ommon law marriages are not invalidated…”7 In these states, a common law spouse cansue for wrongful death of the other.

Other states have created means, be-yond common law marriage, to allow recov-ery for a wrongful death. Examples of theseare:• Colorado’s Designated Beneficiary

Agreement Act allows two unmarriedpeople to sign a document stating thatboth have different legal rights, includingthe right to be the beneficiary of a wrong-ful death claim. A designated beneficiarycan benefit from a wrongful death claimlike a spouse or the heirs of the deceased.

• Michigan’s Wrongful Death Act is moreexpansive than most states. Not only doesthe act list the deceased’s spouse, chil-dren, descendants, parents, grandparents,brothers, sisters, and children of the de-ceased’s spouse, but it also lists devisees inthe deceased’s will as a person who can re-cover for wrongful death. This means thata beneficiary under the deceased’s willcan benefit from a wrongful death claimjust like any of the family listed in thestatute, even though the devisee may notbe family at all.

• In an additional 14 states8, legal effect isgiven to marriage that is recognized inthe state in which it was formed.

In 22 states a faithful, longstanding re-lationship between a man and a woman orbetween same-sex partners that is not li-censed as a marriage creates no right of re-covery for the death of the other half of therelationship. As in early America, it still mat-ters where you die, at least as far as recoveryin a wrongful death action is concerned.

THE POSSIBLE IMPACT OFOBERGEFELL Under the reasoning of Obergefell v.Hodges it is not illogical to think that thenumber of beneficiaries of wrongful deathactions will increase. The Court’s ruling isretrospective as well as prospective. Courtsmay therefore be asked to determinewhether pre-Obergefell common law mar-riages among same-sex couples will be rec-ognized as creating a valid wrongful deathaction in the surviving partner now whereone partner died due to negligence occur-ring before the Obergefell decision.

Courts may also be asked to decidewhether the Obergefell ruling will apply be-yond the confines of same-sex licensed mar-riage to heterosexual and same-sex couplesin states where the unlicensed union hasnot yet been recognized. There is plenty oflanguage in the majority opinion to suggestthat these relationships may be recognizedin some circumstances. “The dynamic ofour constitutional system is that individualsneed not await legislative action before as-serting a fundamental right,” JusticeKennedy wrote. “The Nation’s courts areopen to injured individuals who come tothem to vindicate their own direct, personalstake in our basic charter. An individual caninvoke a right to constitutional protectionwhen he or she is harmed, even if thebroader public disagrees and even if the leg-islature refuses to act.” Indeed, the languageof Obergefell is so broad that the dissentingopinion of Chief Justice Roberts wonderedwhether “States may retain the definition ofmarriage as a union of two people,” andquestioned “why would there be any less dig-nity in the bond between three people who,in exercising their autonomy, seek to makethe profound choice to marry?” Validatinglong-standing relationships among coupleswho cannot claim common law marriagestatus in their state of residence may be aneven easier extension. Same-sex marriage may prove the cata-lyst to removing barriers to wrongful deathrecovery for an even broader class of plain-tiff. In the not too distant future, at leastwith respect to wrongful death actions, itmay not make a difference where you live.

Paul F. Ebeltoft is a memberof Ebeltoft . Sickler .Lawyers, headquartered inDickinson, North Dakota.He has been a trial lawyerin North Dakota for nearly40 years. Paul enjoys assist-ing in litigation matters

across the spectrum of his firm’s practice areas.

Olivia Krebs is a law clerkat Ebeltoft . Sickler .Lawyers in Dickinson,North Dakota. She is cur-rently a law student atCreighton University Schoolof Law and pursuing herMasters of Science in

Negotiation and Conflict Resolution at theWerner Institute at Creighton University.

1 576 U. S. ____ (2015)2 Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808).3 Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South

Carolina, Texas and Utah.4 Georgia, Idaho, Ohio and Pennsylvania5 Tex. Family Law §2.401(a) (2). This statute now applies only to an informal marriage of a man and a woman, but

arguably will be amended by the rationale of Obergefell v. Hodges.6 N.H. Stat.§457:39. This appears to recognize the marriage for purposes of inheritance only, but appears to apply,

on its face to wrongful death.7 Mont. Stat.§40-1-4038 California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maryland, Missouri, Nebraska, Nevada, New York,

Oregon, Tennessee and West Virginia.