Kentucky Supreme Court allows surviving spouse to make loss of consortium claim beyond the date of death of victim and corrects obvious error in law.

Sometimes when there is a common law right and a similar one created by statute, the courts become confused and create erroneous laws. Such is the case with regard to spousal loss of consortium laws in the state of Kentucky. Thankfully, the Kentucky Supreme Court recently corrected erroneous laws created by lower courts, who struggled to interpret common law and statutory law regarding the damage claim called “spousal loss of consortium.” This claim is of particular importance in the case of the wrongful death of a spouse and as a Kentucky wrongful death lawyer I have presented this claim since 1986.

A "spousal loss of consortium" claim is the right of a spouse to damages for the loss of companionship of their decedent spouse who has died as the result of the negligence of someone else. At common law, which is the law of equity that existed prior to the creation of legislatures and statutes, this right was limited to the time period prior to the victim’s death. In other words, if your spouse was injured, I, as your Kentucky wrongful death lawyer, would make a claim for loss of consortium but that damage ended if your spouse died. It is uncertain why the common law was written this way. It does not make sense that you can lose the companionship of a spouse when they are injured but not when they die. When they die is when you permanently lose the companionship of your spouse. Perhaps the common law assumed everyone would remarry and replace the lost companionship. Of course, remarrying does not replace the original companionship.

The Kentucky legislature codified the loss of consortium laws in KRS 411.145 and the statute in no way limited spousal consortium to the life of the victim. However, the common law confused some courts and erroneous judge made laws were created that limited spousal consortium to the life of the victim. Finally, the Kentucky Supreme Court has corrected this error in the law through the recent case of Tina Martin v. Ohio County Hospital Corporation.