Florida Gay Marriage and Equal Rights


Yesterday marked the end of Florida’s ban on legally recognized gay marriages. Gay couples, many who had been waiting decades, lined up inside and outside courthouses to get their marriage licenses. This is a big step for Florida. But what does being married mean legally speaking?

Marriage has always been what attorneys call a “legal fiction” — meaning that when two people are married the law sees them a little differently than it sees single people who aren’t legally married. While most people know that being married means different income tax rules apply, etc., there are some other legal rights that are exclusive to only married people. Let’s talk a little about two of them that normally slip under the radar:

The Spousal Immunity Privilege

If you watch TV, you know that in a criminal case, what you say can and will be used against you in the court of law. Unless you say it to your attorney or your spouse. Before gay marriages were legally recognized, gay couples or partnerships couldn’t enjoy this right that hetero married people held.

Some things you should know about Florida’s spousal immunity privilege:

    • It only applies to statements made in confidence from spouse-to-spouse. If you tell your spouse where you stashed the evidence from your crime while at a crowded Starbucks, you can’t claim it was privileged.
    • It only applies to statements made while you are legally married. This means that if you tell your spouse something incriminating before the words “by the power vested in me, etc.” it could be used against you.
    • Either spouse can invoke the privilege. Even if your spouse wants to testify about what you told them, you can prevent that from happening.
    • It doesn’t apply in domestic violence cases where the spouse is a victim. That should be pretty obvious.
    • Getting divorced doesn’t undo the privilege, as long as the statements were made while married.

Also, you may notice that the spousal immunity privilege is actually titled “Husband-Wife Privilege” in the Florida Statutes. There are actually 75 statutes that use the word “husband” and 69 statutes that use the word “wife.” But, the way the state legislature is made up I wouldn’t expect this wording to change any time soon.

Right to Damages in a Wrongful Death Case

If you are married, you are legally a “survivor” for purposes of Florida’s wrongful death statute. Let me explain what this means using two scenarios:

Not Married: You and your partner are driving in your car when you are hit by an eighteen wheeler. Your partner dies. You sue the driver of the eighteen wheeler for your partner’s death (this is a “wrongful death lawsuit”). Even though the driver of the eighteen wheeler caused the accident and killed your partner, you can’t recover damages for your emotional trauma or for the loss of your partner’s support as a result of your partner’s death.

Married: You and your spouse are driving in your car when you are hit by an eighteen wheeler. Your spouse dies. You sue the driver of the eighteen wheeler for your spouse’s death (this is a “wrongful death lawsuit”). Because you are married you are able to recover damages for your emotional trauma from the eighteen wheeler driver.

See the difference? The wrongful death law gives special treatment to people who are legally married over those who aren’t. Before gay marriage was legal, gay couples or domestic partnerships couldn’t get the same damages as hetero married couples.


Hopefully you won’t have to use either the spousal immunity privilege or be a wrongful death survivor. But if you have questions about these, please don’t hesitate to contact us.