“Surviving Spouses” Under Ohio’s Wrongful Death Act Must Include Those from Same-Sex Marriages

Kegler Brown Government Affairs Update

The United States Supreme Court's recent decision requiring all states to recognize same-sex marriage opens the door to such spouses to rights under Ohio’s tort laws, including wrongful death claims and benefits. Further, such claims (i.e., lawsuits) should be immediately permitted so long as they are filed within two years of the death.

Ohio Revised Code §2125.02(A)(1) allows a decedent’s personal representative to file a lawsuit for a wrongful death on behalf of and for the benefit of spouses, children, parents and next of kin. "Spouses," children and parents of a decedent, are presumed to have suffered damages from a wrongful death under Ohio law.

Ohio Constitution, art. 15, § 11 (2004) and O.R.C. §3101.01(C), before each was held to violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment, only recognized marriage between a man and a woman. The effect was to deny, for example, the surviving same-sex spouse of someone negligently killed (in an auto accident or otherwise) the right to pursue a lawsuit to recover anything from a wrongful death lawsuit or settlement even if other surviving family members actually pursued and won.

On June 26, 2015, the United States Supreme Court found that the right to marry is a fundamental right, holding that same-sex couples cannot be deprived of such a right. Obergefell v. Hodges, 2015 U.S. LEXIS 4250, at *42. Moreover, state law cannot exclude same-sex couples from receiving the same benefits as opposite-sex couples. O.R.C. §2125.02(A)(1) identifies a "surviving spouse" as a beneficiary of a wrongful death action, so depriving such a person a right without due process of law would fly in the face of the US Constitution. The Ohio Supreme Court issued an order regarding the gender-neutral interpretation of familial relationships within court rules and forms, which would apply to probate court forms used routinely in wrongful death estate and settlement applications and approvals. Admin. Actions., 2015-Ohio-2568.

Issues that may still cause a roadblock to some wrongful death plaintiffs include the statute of limitations, which is two years from the death, and domestic partners who were not actually married under the laws of a state. Claims by same-sex surviving spouses that were not brought before the Obergefell decision would still likely be subject to the 2-year limitation period. But it is unclear how Ohio courts would treat individuals who were considered domestic partners, or who were formally joined in civil unions or equivalents in states that did not recognize marriage.


Pierre-Louis has litigated wrongful death and other numerous other cases in Ohio since 1997 before the trial, appellate and supreme courts, and has been a member of the Million Dollar Advocates Forum since 2002.