Tuesday, December 23, 2008

Utah's Wrongful Death Amendments -- Real or Symbolic?

There’s been lots of activity in Utah since the passage of Prop 8 in California. The state-wide gay rights organization, Equality Utah, is taking the Mormon Church up on their professed support for gay rights…as long as it’s not marriage. Now we all know they don’t really mean it, but I love calling their bluff!

Equality Utah’s website lists the components of their Common Ground Initiative. They want support for a host of gay-positive measures. Even the New York Times has taken notice. The first bill to be voted favorably out of a legislative committee sounded at first like an item on my valuing-all-families agenda (the whole agenda is in the last chapter of my book, which has just come out in paperback). But in the end if this bill passes it seems to me more symbolic than likely to really help the people who need it.

The issue is who can sue for wrongful death. Wrongful death is the name of the law suit a person can file if another person dies as a result of the negligent or intentional actions of someone else. Fatal car accidents and medical malpractice are two common examples of wrongful death actions. The catch is that only certain people can file those actions, and that group is almost always limited to a formalistic definition of family members – spouses, children, parents, siblings, and other relatives.

My position is simple. The purpose of a wrongful death action is compensation for the loss of an economic asset. We know this because the damages a person can receive are based upon the earning power of the deceased (no recovery for the heartache of losing a loved one). That’s right; the death of a doctor will generate a larger damages award than the death of a janitor. So…anyone financially dependent on the deceased should be able to file a wrongful death action. This should include unmarried partners who live together in an economically interdependent relationship, as well as any other combination of economically interdependent people.

So here’s the bill that emerged earlier this month. Called the "Wrongful Death Amendments," it extends the right to file a wrongful death action based on economic interdependency, provable by living together for five years (not a requriement for a spouse!), being named a life insurance, will, or retirement benefit beneficiary, having joint assets and liabilities, and, if either owns a home, owning it together. And there's one more requirement: the deceased must have named the person as a "wrongful death heir" in a will or notarized document.

These requirements go way overboard. My partner of 20+ years and I each own a house; we don’t co-own either. So we couldn't recover for each other's wrongful death. A person with no life insurance or retirement account would have to write a will. But even if a couple meets the test for economic interdependency, who writes a document (notarized!) that says “If I die as a result of negligence or intentional actions, so-and-so is to be able to file a wrongful death action?”

The bill's openly gay sponsor talks about the bill here. Of course it's not about marriage, and he is right to say so. But I can't help but think that piling on so many requirements turns the bill into something symbolic on both sides, not something that will help same-sex couples or others. I assume the many requirements are to make the bill more palatable to anti-gay, right-wing "marriage movement" types. But I'm not looking for symbolic wins; I'm looking for law reform that values all families...not just those who get themselves to lawyers to draw up documents.

The bill would be much improved if it used the definition of economic interdependence for "adult designees" contained in Salt Lake City's employee benefits law (section 2.52.100). That requires living together for 12 months and three of five proofs of economic interdependence--still too much but much better than the requirements of the Wrongful Death Amendments.

Will it be worth it to get this bill through the Utah legislature? Monitor the bill's progress on the Equality Utah website and decide for yourself.

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