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Loss of Consortium

The claim of a spouse - and in some states a child or parent - for what an injury to a family member took from the relationship itself: companionship, affection, household services and the marital relationship, what has to be proved, why it is derivative of the injured person's claim, and how it is pleaded, valued and settled.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

When one person is seriously injured, the law recognises that a second person has lost something too. Loss of consortium is the claim of the injured person's spouse for the damage to the marital relationship: the loss of the spouse's companionship, affection, comfort, society, sexual relationship and household services, and the burden of care the uninjured spouse has taken on. It is a separate claim with its own damages, and the spouse is a separate plaintiff who is usually joined in the injured person's lawsuit. Every state allows the claim to a spouse whose partner was injured by another's negligence or wrongful act; it was once limited to husbands and is now available to either spouse, and in states that recognise them, to registered domestic partners.

The claim is derivative: it exists only because of the underlying injury, so if the injured spouse's claim fails - no negligence, no causation, a complete defence - the consortium claim fails with it, and in most states the injured spouse's own comparative fault reduces the consortium recovery in the same proportion. The relationship must have existed when the injury occurred; a person who married the victim after the accident has no claim, and in most states an unmarried partner has none however long the relationship. Some states extend a form of the claim to a parent for injury to a minor child, or to a child for the loss of a parent's guidance and care (filial consortium), and a few allow it for injury to an adult child; the wrongful-death statutes cover the same relational losses when the injury is fatal, and the consortium claim then merges into that action.

Damages are non-economic and are proved through the couple's own testimony and that of people who knew them: the marriage before and after, the activities lost, the care now required, the change in the injured spouse's personality or capacity. There is no formula; juries are instructed to award what is fair, and states that cap non-economic damages generally apply the cap to the consortium claim, sometimes as part of a single cap shared with the injured spouse. Pleading the claim opens the marriage to discovery - the other side may inquire into the relationship's history, counselling and difficulties - which is a reason some couples choose not to bring it. In settlement the claim is usually resolved together with the injured spouse's, and a release signed by the injured spouse alone may not bar it, which is why defendants insist that both sign.

Where this comes from

Loss of consortium is state common law, in some states codified or modified by statute, and the scope of the claim - which relationships qualify, whether a parent or child may sue, and how caps apply - differs by state. The extension to wives, which made the claim mutual, began with Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950), and the derivative character of the claim is discussed in Restatement (Second) of Torts §§ 693-707. Filial and parental consortium claims are recognised by decision or statute in a minority of states. Domestic-partner standing exists where a state registration statute confers spousal rights (California Family Code § 297.5 is one). The relationship to wrongful-death recovery follows each state's wrongful-death act. No cap amount or limitation period is stated here.

When people hire a lawyer for this

A spouse of a seriously injured person should tell the lawyer about the effect on the marriage at the first meeting rather than assuming only the patient has a claim, and should decide with counsel whether the added recovery is worth the added intrusion of discovery into the relationship. Because the claim is derivative, it stands or falls with the main case and is usually handled by the same lawyer under the same fee agreement. Parents of an injured child, and adult children of an injured parent, should ask whether their state recognises their claim; many do not, and the answer changes what the family can expect from the case.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.