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A claim for a loss of consortium cannot arise unless the family member has, inter alia, a legal relationship with the injured third party. In the case of adult couples, the legal relationship is established by marriage. The Massachusetts Supreme Judicial Court consistently has rejected the idea that cohabiting adults, even those who could demonstrate a commitment to each other, could recover.
Kalish and Charron in 1986. In 1994, they exchanged rings in a private ceremony. Through an anonymous donor program, Kalish conceived a child, who was jointly adopted by Kalish and Charron. The couple shared all household expenses, and executed legal documents, including durable powers of attorney, wills, health care proxies, and life insurance policies, each granting the other the necessary legal authority or naming the other as her beneficiary. In 2003, Charron was diagnosed with *** cancer. At that time, Kalish and Charron were not married. Pursuant to the Goodridge holding, however, they applied for a marriage license on the first day the Commonwealth permitted it, and were married on May 20, 2004. Kalish filed claims for a loss of consortium. Defendants filed a motion for partial summary judgment and contended that Kalish's claims for the loss of consortium of Charron could not be proved because Kalish was not married to Charron at the time the alleged cause of action accrued. The judge concluded that summary judgment was "required based upon the current state of the law."
Was Kalish entitled to loss of consortium damages?
The Supreme Judicial Court found that even though the parties married as soon as it was legal for them to do so, because Charron’s cancer was diagnosed before they were married, Kalish was not entitled to loss of consortium damages.