A little-noticed byproduct of the recent, historic marriage equality rulings is that married gay and lesbian couples in Florida now enjoy equal protection under state laws protecting tort victims.
Prior to the lifting of the stay on U.S. District Judge Robert Hinkle’s injunction against the enforcement of Florida’s laws banning same-sex marriage and denying legal recognition of same-sex marriages performed in other states, same-sex couples lacked standing to sue for damages caused by the death or severe injury of their life partner as a result of a tortfeasor’s misconduct. That is because the Florida Wrongful Death Act defines a “survivor” as “the decedent’s spouse,” § 768.18(1), Fla. Stat., and a loss of consortium claim could not be brought by an unmarried partner. See Bashaway v. Cheney Bros., 987 So. 2d 93 (Fla. 1st DCA 2008) (rejecting same-sex partner’s loss of consortium claim).
