Washington’s Flawed Reasoning in Denying Non-Dependent Parents’ Loss of Consortium Claims for Adult Children

Although I am not a parent, I am sure most who are would agree that the thought of losing a child is unbearable, regardless of the child’s age. While this seems like a generally understood and accepted notion, some parents are denied a remedy under Washington law. Since the wrongful death statute was enacted in 1917, Washington has denied non-dependent parents the ability to recover for the negligent death of their adult children. Instead, a two-tier system exists in which parents are allowed to recover only if they are substantially dependent on their adult child for financial support.

The United States Supreme Court recognizes a parent’s fundamental right to the companionship and society of his or her child through the due process clause of the Fourteenth Amendment. The U.S. Court of Appeals for the Ninth Circuit and Washington’s federal district courts have recognized this right and allowed parents to recover under 42 U.S.C. § 1983. The federal courts have further found that Washington’s statutory structure for wrongful death recovery upsets the precedent of the Ninth Circuit as well as the U.S. Supreme Court.

Five states agree with the Ninth Circuit, finding that parents of adult children are able to recover because there is no sensible reason to differentiate between parents of adult children and those of minor children. This recovery is based on the absence of the decedent within the family structure, the loss of companionship and emotional support from someone who had a role within a functioning unit that is not easily replaced. These courts based their rulings on common sense and a real picture of a typical, close-knit family in the United States today.

This article will argue that Washington should follow the precedent of the Ninth Circuit and complying states, which allow a non-dependent parent to recover for the negligent death of their adult child. Washington should adopt this expansion because its statute is outdated and recent state case law is trending towards broader recovery for parents. Further, this statute is inconsistent with the reasoning and policy of federal courts and a minority of states, which argue that instead of ignoring this fundamental relationship, it should be fostered to support strong familial relationships. Today, more adult children are caring for their aging parents and denying recovery further prevents parents from receiving resources their children would have provided them in the future. Finally, the pain felt by a parent who experiences the death of a child is real and significant, no matter this child’s age at death.

. . .

Read More

Maura Senecal, Washington’s Flawed Reasoning in Denying Non-Dependent Parents’ Loss of Consortium Claims for Adult Children, 49 Gonz. L. Rev. 264 (2014).

Comments are closed.