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The Importance of Marriage following an injury —When a Power of Attorney is not enough.

The Importance of Marriage following an injury —When a Power of Attorney is not enough.

by Brad Biren

We are often asked whether a boyfriend or a girlfriend can recover against another party, like a negligent driver, if their love interest was injured. The short answer is no, but as always it depends. In order to recover for damages in Iowa for an injury suffered by another person, one must have a recognized relationship with that person before the injury occurred. Some of those relationships include, parent/child, next of kin, siblings, executor of an estate, and spouses. Many of you reading this may have a Power of Attorney over a loved one—related by blood or not—that instructs third parties to accept your decisions as your loved one’s own decisions under certain circumstances. Such legal instruments give you ZERO rights of recovery for ANY recovery in the state of Iowa.

In order to overcome this burden of establishing a legally recognized relationship, if there is no such relationship already in existence, is to become spouses. There are two ways to become a spouse in this state. Iowa is a unique state in that it is one of the few remaining common-law marriage states. Mainstream marriage, with a license and officiant, in Iowa requires a three-day waiting period before a license automatically becomes valid upon completion of its statutory components. Under certain circumstances, one can have that three-day waiting period waived, for example if a judge agrees to waive it due to imminent death or other similar reasons. Common-law marriage is different and harkens back to when it was still a territory. It requires several steps, including holding oneself out as married for at least two years to the public; as well as, several other steps.

This rule is true for both same-sex and opposite-sex couples. Domestic partnership although still in existence within the state, does not offer rights of recovery through a civil suit. In many ways it’s similar to a Power of Attorney, but includes rights to property. But, nothing is as powerful as marriage! There are two theories of recovery for spouses—the first is they have diminished capacity to perform their spousal duties since the accident; the second is that they have died due to the negligent or intentional act of another. If your spouse can no longer perform their part of keeping up the house, taking care of the children, providing emotional support, and romance, then if you are legally married, you can likely establish a loss of consortium claim. If your spouse has died due to the negligent acts of another, the malpractice of a physician or doctor, and/or the foreseeable result of an intentional act, then you can recover for both wrongful death and loss of consortium. Keep in mind that loss of consortium is also available to children and parents that have lost their parents or offspring.

If you have been dating for many years, but you are not married, you have no rights to recover for loss of consortium or wrongful death. Therefore, if your spouse is the victim of malpractice, negligence, or any injury and they are likely going to suffer for a long time or die imminently, get married! Marriage creates a legal relationship between the two of you, regardless of gender, that guarantees your right to recovery.

The law does not have sympathy for the elderly or for our loved ones left behind due to tragedy. To explain the dire need for a marriage license, I will share an anecdote. A potential client approached me about his male partner in hospice care. The two were not married but instead lived together in a romantic relationship for several decades. The partner in hospice was the victim of medical malpractice. The other spouse contacted me about what to do recover against the medical facility once his partnered passed away. I inquired about the legal status of their relationship and learned that they had not gotten married and had kept their relationship a secret. I immediately informed him that they had to get married. The healthy partner scoffed at the idea and told me that he had rights, “everyone knows that!” He was clearly indicating the marriage equality decision in Obergefell where the Supreme Court granted equal marriage rights to same-sex couples in 2016. I told him that right to GET married was extended to include him and his partner, in 2009 with the decision of Varnum v. Brien under Iowa law.

But, that was the key—he had the right to get married, NOT the right to be automatically deemed married. He would still have to marry his partner to receive those rights he referenced to earlier. He was clearly distraught and I told him to think about what I had said and to let me see what I can do to have the three day waiting period waived. The County recorder offered to allow me, the attorney, to get the application, have them sign the affidavit, help me to represent them before a judge to apply for the waiver and to find a judge on short notice. Iowa is an amazing place!

When I contacted the healthy partner back with all that I had done behind the scenes, he scoffed at me and told me that “he had rights!” His partner died several days later, leaving the surviving partner without rights. At this junction, the only people with rights to recovery were the deceased man’s estate and his blood relatives. His blood relatives had disowned him, thereby, cutting off any possible recovery against the negligent physician. In that case, there will never be justice.

What he didn’t understand was that a Power of Attorney does not grant anyone the same rights as a spouse for recovery against a negligent physician within the state of Iowa. Don’t let this tragedy happen to you! If you have been with someone for many years and you care about their health, wellness, and happiness—get married! Follow all the proper steps. If you need help, contact our law firm! A marriage license does not require fanfare, but it does require you to take the first step. For more information or to answer your legal questions, please contact Johnston Martineau at biren@jmlegal.com or 515-635-5423.