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The Necessity of Marriage for Heterosexual Couples who wish to Pursue Wrongful Death in California

The ability to sue for wrongful death in California is entirely statutory. As a result, you can only bring an action for the wrongful death of a loved one if you find yourself in the statutorily defined categories. At present, California law treats same-sex couples differently that it does heterosexual couples, when it comes to the ability to bring a suit for wrongful death.
Code of Civil Procedure § 377.60 states, in pertinent part:

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:
(a)The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
(f) (1) For the purpose of this section, “domestic partner” means a person who, at the time of the decedent’s death, was the domestic partner of the decedent in a registered domestic partnership established in accordance with subdivision (b) of Section 297 of the Family Code.
Code of Civil Procedure § 377.60 [emphasis added].

Family Code § 297, provides the definition of “domestic partnership” referred to in Code of Civil Procedure § 377.60. Section 297 defines “domestic partners” as follows:

(a) Domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.
(b) A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met:

(4) Either of the following:
(A) Both persons are members of the same sex.
(B) One or both of the persons meet the eligibility criteria under Title II of the Social Security Act as defined in Section 402(a) of Title 42 of the United States Code for old-age insurance benefits or Title XVI of the Social Security Act as defined in Section 1381 of Title 42 of the United States Code for aged individuals. Notwithstanding any other provision of this section, persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over 62 years of age.
Family Code § 297 [emphasis added]

These sections, read together, provide relief for cohabitating, unmarried, same sex couples but deny that same right to cohabitating, unmarried, opposite sex couples, unless they are over the age of 62. Same sex couples can register as domestic partners in California and this allows them to later file for wrongful death should their partner die. This is not the case for heterosexual couples. Unless heterosexual couples are over the age of 62, they cannot bring an action for wrongful death unless they are married – California law does not permit heterosexual couples to register as domestic partners.

The issue of the disparity and constitutionality of Code of Civil Procedure § 377.60 was challenged in 2004 in Holguin v. Flores (2004) 122 Cal. App. 4th, 428. In that matter, Mr. Holguin challenged the constitutionality of Section 377.60 after defendant was granted summary judgement of his wrongful death claim. Mr. Holguin was not married to the decedent, his girlfriend of three years. At that time, the Court upheld the constitutionality of Section 377.60, holding:

The fact domestic partners are legally or practically prevented from marrying, while cohabiting couples of the opposite sex are not, provides a rational basis for extending the right to sue for wrongful death to the former but not the latter.
Holguin v. Flores (2004) 122 Cal.App.4th 428, 432 [emphasis added].

Thus, the Appellate Court determined Section 377.60 to be constitutional solely because homosexuals are legally prevented from marrying.

Since Holguin, the United States Supreme Court has ruled that homosexuals have a fundamental right to marriage. Obergefell v. Hodges (2015) 135 S. Ct. 2584. Stating “The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2607. As a result of the Supreme Court’s ruling in Obergefell, the reason for upholding the constitutionality of Section 377.60, as enunciated in Holguin v. Flores, (2004) 122 Cal. App. 4th 428, no longer exists.

There is no longer a basis, rational or otherwise, for the discriminatory effect of Code of Civil Procedure § 377.60 and Family Code § 297 which permit unmarried cohabitating couples of the same sex to pursue actions for wrongful death while denying that same right to unmarried cohabitating couples of opposite sexes.

Cohabitating same-sex couples, if registered, can file for wrongful death. Cohabitating heterosexual couples cannot. Until this glitch in the law is corrected, it is important not to underestimate the importance of marriage with respect to your ability to bring a wrongful death case.  Over the years, we have had  cases where the Court rules that couples whom have lived together for decades, and whom have had multiple children, cannot maintain an action for wrongful death when their partner has been killed due to the negligence of a third party simply because they were never married.

By Jean-Simon Serrano.

Mr. Serrano has been handling personal injury cases for 10 years at Heiting & Irwin and has been named to Super Lawyers’ Southern California Rising Stars list 6 times (2012-2017).

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