50 States. 50 Wrongful Death Statutes. Why Where You Die Matters

Written by Paul F. Ebeltoft and Olivia Krebs of Ebeltoft . Sickler . Lawyers PLLC for the 2015 Fall/Winter issue of USLAW Magazine.

This past summer, Justice Kennedy, delivering the United States Supreme Court opinion in Obergefell v. Hodges1 upholding the right of same-sex persons to marry, called the identification and protection of fundamental rights “an enduring part of the judicial duty.” Among the privileges that marriage now affords same-sex couples is damages in tort suits where one partner has been injured or killed.

We have come a long way. The common law imported from the English system in 18th century America prohibited anyone from recovery for the death of another, however wrongful. “[I]n civil Court, the death of a human being could not be complained of as an injury.”2 When the English Colonies became the new United States, some states ignored the English rule, allowing money damages where masters, husbands and fathers sued for recovery of the economic loss suffered through the deaths of servants, wives or children. Other states, while allowing suits arising out of injury by negligent conduct, prohibited suits for damages when someone died as a result. Putting aside the bad public policy that encouraged negligent parties to “finish the job,” rather than just injure someone, the basis upon which a court might grant relief, if at all, for a wrongful death was hard to decipher. With differences among the states proliferating, in early America where you died mattered…READ MORE.