Can a Domestic Partner File Wrongful Death in Arizona?

TL;DR

In Arizona, a domestic partner cannot directly file a wrongful death lawsuit simply based on their relationship status. State law, specifically Arizona Revised Statutes (A.R.S.) § 12-612, restricts the right to file a claim to a specific list of individuals, which includes the surviving spouse, children, parents, or the personal representative of the deceased person’s estate. For a domestic partner, the only available pathway to initiate a wrongful death action is by being legally appointed as the personal representative of their deceased partner’s estate. This appointment is most commonly achieved if the deceased partner named them as the executor in a valid will.

Key Highlights

No Direct Standing: Arizona law does not recognize a “domestic partner” as an eligible party to file a wrongful death claim.
Eligible Filers: The law explicitly names the surviving spouse, child, parent, guardian, or personal representative as the only parties who can bring a lawsuit.
The Personal Representative Role: A domestic partner can file a wrongful death lawsuit if, and only if, they are appointed by the court as the personal representative of the estate.
Importance of a Will: The most straightforward way for a domestic partner to be appointed personal representative is to be named as the executor in their partner’s will.
Distribution of Damages: Even if a domestic partner files as the personal representative, any monetary damages recovered are distributed to the statutory beneficiaries (spouse, children, parents), not to the domestic partner.

Losing a loved one is a profound and life-altering experience, made even more difficult when the death was caused by the careless or intentional act of another person. In Arizona, the legal system provides a way for certain family members to seek justice and financial stability through a wrongful death claim. These claims are intended to compensate survivors for the immense losses they suffer, both economic and emotional. Each year, thousands of these claims arise from incidents like vehicle collisions on the I-10, medical errors in Phoenix hospitals, or construction site accidents in growing communities across the state.

The foundation for these legal actions is found in the Arizona Revised Statutes, specifically A.R.S. § 12-611, which defines a wrongful death, and § 12-612, which dictates who has the legal right, or “standing,” to file a lawsuit. This statute is incredibly precise, creating a clear hierarchy of individuals who can act on behalf of the deceased. The law was written decades ago and reflects a more traditional definition of family, which can create significant challenges for individuals in non-traditional relationships, such as committed domestic partnerships.

Because the Arizona legislature has not updated the wrongful death statute to include modern family structures, domestic partners find themselves in a precarious legal position. Unlike a legally married spouse, a long-term partner has no automatic right to seek compensation for their loss. This legal reality means that understanding the specific exceptions and procedural requirements is not just helpful; it is absolutely essential. The ability of a surviving partner to hold a negligent party accountable often depends entirely on a separate legal process tied to the deceased’s estate plan.

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Understanding Arizona’s Wrongful Death Statute (A.R.S. § 12-612)

When a person’s death is caused by the wrongful act, neglect, or default of another, Arizona law allows a lawsuit to be brought against the responsible party. However, the law is very specific about who can initiate this legal action. The core of this issue lies in the language of A.R.S. § 12-612, which acts as a gatekeeper, defining both who can file the lawsuit and who can benefit from it.

Who is a “Statutory Beneficiary”?

The term “statutory beneficiary” refers to the individuals who the law recognizes as having suffered a loss and are therefore entitled to receive compensation from a wrongful death claim. In Arizona, the lawsuit must be brought by and in the name of a specific person, but it is done for the benefit of all the statutory beneficiaries.

According to A.R.S. § 12-612, the action can be brought by one of the following parties:

The Surviving Husband or Wife: This refers to a legally married spouse.
A Child of the Deceased: This includes biological and legally adopted children.
A Parent or Guardian of the Deceased: The biological or adoptive parents have the right to file.
The Personal Representative of the Deceased Person: This is an individual appointed by the probate court to manage the deceased’s estate.

It is important to understand that even if only one of these parties files the lawsuit (for example, the surviving spouse), the claim is pursued on behalf of all potential beneficiaries. This means any damages awarded would be divided among the surviving spouse, children, and parents, based on their individual losses.

The Critical Omission: Why “Domestic Partner” Isn’t on the List

You will notice that the term “domestic partner” is conspicuously absent from the list of eligible parties. This is not an accidental oversight. The statute was drafted at a time when the law only recognized legally formalized marriages. Courts in Arizona are bound by a principle called “statutory construction,” which means they must interpret and apply the law exactly as the legislature wrote it. A judge cannot add a new category of people, like domestic partners, to the statute, no matter how unfair the outcome may seem. Only the Arizona State Legislature has the power to amend the law to include them.

This creates a stark and often painful contrast. For example:

A couple married for six months has a clear legal path. If one spouse is killed, the surviving spouse can file a wrongful death claim immediately.
A couple in a committed domestic partnership for 30 years, who shared a home, finances, and raised children together, has no direct legal path. The surviving partner is not recognized as a “surviving spouse” under this specific law.

This legal reality highlights a gap between how society has evolved and how the law has remained static. While other states have updated their wrongful death laws to include registered domestic partners or civil union partners, Arizona has not yet taken that step.

The Personal Representative: The Primary Pathway for a Domestic Partner

While a domestic partner cannot file a wrongful death claim based on their relationship status, there is one potential avenue available: acting as the personal representative of the deceased’s estate. This role is the key that can unlock the courthouse door for a surviving partner, but gaining this appointment is a separate legal process in itself.

What is a Personal Representative?

A personal representative is a person or institution appointed by a judge in probate court to administer a deceased person’s estate. This person is responsible for gathering the deceased’s assets, paying their final debts and taxes, and distributing the remaining property to the heirs or beneficiaries.

If the deceased had a will, the person named to handle this role is called the executor.
If the deceased did not have a will (died “intestate”), the court appoints someone to the role, called the administrator.

The personal representative has the legal authority to act on behalf of the estate, which includes the power to file lawsuits, such as a wrongful death claim.

How a Domestic Partner Can Be Appointed

The process for a domestic partner to become the personal representative depends heavily on whether their deceased partner had a will.

Scenario 1: The Deceased Had a Will. This is the most direct and effective route. If the deceased partner created a valid will and specifically named their domestic partner as the executor (personal representative), the path is much clearer. The surviving partner would need to file the will with the appropriate Arizona county probate court and petition to be formally appointed. Once the court approves the appointment and issues “Letters Testamentary,” the partner has the legal standing to file the wrongful death lawsuit.
Scenario 2: The Deceased Did Not Have a Will. This situation is significantly more challenging. When someone dies without a will, Arizona law (A.R.S. § 14-3203) establishes a priority list for who can be appointed as the personal representative. The order of priority is:
1. The surviving spouse
2. Other heirs of the deceased (typically adult children)
3. Other eligible individuals, as determined by the court

A domestic partner is not included on this priority list. To be appointed, the surviving partner would have to petition the court and convince a judge that they are the most suitable person to manage the estate. This petition could be contested by the deceased’s legal family members (like parents or siblings), who have a higher statutory priority.

Responsibilities of the Personal Representative in a Wrongful Death Case

It is crucial to understand a critical distinction: filing the lawsuit is not the same as receiving the compensation. When a personal representative files a wrongful death claim, they are acting as a fiduciary for the statutory beneficiaries (the spouse, children, and parents).

The personal representative’s duties include:

Hiring a wrongful death attorney.
Making decisions about the litigation, such as whether to accept a settlement offer.
Managing the lawsuit on behalf of the estate.

Any money recovered from the lawsuit does not go into the general estate to pay off debts. Instead, it is held in trust for the statutory beneficiaries and distributed directly to them. This means that even if a domestic partner successfully files the lawsuit as the personal representative, they are not personally entitled to a share of the wrongful death damages. The compensation would go to the deceased’s surviving children or parents, if any exist.

Common-Law Marriage and Its Inapplicability in Arizona

Sometimes, people in long-term, committed relationships wonder if they might be considered married under “common law,” which could give them the standing of a surviving spouse. While this is a valid question, it is a path that is closed to nearly all couples in Arizona.

Does Arizona Recognize Common-Law Marriage?

The answer is a clear and simple no. Arizona is not a common-law marriage state. You cannot create a common-law marriage by living together in Arizona, regardless of how long you have been a couple, whether you have children together, or if you present yourselves to the community as a married couple. To be legally married in Arizona, you must obtain a marriage license and have a formal ceremony.

Without a valid marriage certificate, a domestic partner will never be considered a “surviving spouse” under the wrongful death statute if their relationship was based entirely within Arizona.

The Exception: Marriages Established in Other States

There is one narrow exception to this rule. The “Full Faith and Credit Clause” of the U.S. Constitution requires states to recognize the public acts, records, and judicial proceedings of every other state. This includes legally valid marriages.

A handful of states still permit the formation of common-law marriages, including:

Colorado
Iowa
Kansas
Montana
Oklahoma
Rhode Island
South Carolina
Texas
Utah
The District of Columbia

If a couple met all the requirements for a common-law marriage while living in one of these states and then later moved to Arizona, Arizona law will recognize their marriage as valid. In that specific circumstance, the surviving partner would be considered a legal “surviving spouse” and would have the direct right to file a wrongful death lawsuit.

Proving a Common-Law Marriage from Another State

Simply having lived in a common-law state is not enough. The couple must have met that state’s specific requirements for forming a common-law marriage while they were living there. Proving this can be a complex legal battle in itself. An Arizona court would require substantial evidence from the time the couple lived in the other state, such as:

Intent and Agreement: Proof that both partners intended and agreed to be married.
Public Representation: Evidence that they held themselves out to the public as a married couple. This could include:
- Filing joint tax returns.
- Referring to each other as “my husband” or “my wife.”
- Having joint bank accounts or property deeds in both names.
- Naming each other as spouses on official documents.
Witness Testimony: Statements from friends, family, or colleagues who knew them in the common-law state and believed them to be married.

This is a high evidentiary bar and requires the assistance of an attorney experienced in handling such complex interstate family law issues.

What Damages Can Be Recovered in an Arizona Wrongful Death Lawsuit?

Understanding what is at stake in a wrongful death claim helps illustrate why the fight for standing is so important. The purpose of the lawsuit is to recover damages to compensate the statutory beneficiaries for the full measure of their loss. These damages are typically categorized as either economic or non-economic.

Economic Damages

Economic damages represent the tangible, calculable financial losses that the beneficiaries have suffered due to their loved one’s death. These can include:

Lost Income and Earning Capacity: The value of the wages, salaries, and benefits the deceased would have been reasonably expected to earn over their lifetime.
Loss of Household Services: The monetary value of the services the deceased provided, such as childcare, home maintenance, cooking, and financial management.
Medical Expenses: The cost of any medical care the deceased received for their final injury or illness before they passed away.
Funeral and Burial Expenses: The reasonable costs associated with the funeral, burial, or cremation.

Non-Economic Damages

Non-economic damages are meant to compensate for the profound, intangible human losses that are much harder to assign a dollar value to. These are often the largest component of a wrongful death award.

Loss of Love, Affection, and Companionship: Compensation for the loss of the unique relationship the beneficiaries had with the deceased.
Loss of Guidance and Training: This particularly applies to surviving children who have lost a parent’s guidance, education, and mentorship.
Pain, Grief, and Sorrow: The mental and emotional anguish experienced by the survivors as a direct result of the death.

How Damages Are Distributed

After a trial or settlement, the total amount of damages is determined. This lump sum is not simply divided equally among the beneficiaries. Instead, the court or jury is tasked with apportioning the award to each statutory beneficiary (spouse, children, parents) based on the extent of their individual damages.

For example, a young child who lost a parent may be awarded a larger share than an adult parent of the deceased, as the child’s loss of guidance and financial support will last for many years. Again, it is critical to remember that a domestic partner, even one serving as the personal representative, is not a statutory beneficiary and is not entitled to a share of these wrongful death damages.

Alternative Legal Avenues and Important Considerations

Given the strict limitations of Arizona’s wrongful death statute, a surviving domestic partner may need to explore other legal options and be mindful of critical factors that could affect their rights.

Negligent Infliction of Emotional Distress (NIED)

In very specific and limited circumstances, a person who witnesses a traumatic event may be able to file a claim for Negligent Infliction of Emotional Distress (NIED). This is a separate and distinct claim from wrongful death. It compensates the bystander for their own emotional trauma, not for the loss of their loved one.

The requirements for an NIED claim in Arizona are very strict:

The Witness Was in the “Zone of Danger”: The person must have been close enough to the accident to be at risk of physical harm themselves.
The Witness Suffered Emotional Distress: The emotional shock of the event must have manifested in physical symptoms (e.g., heart attack, severe shock, ongoing physical illness).
A Close Familial Relationship: Historically, this was limited to spouses and immediate family. While an attorney could argue that a long-term domestic partnership qualifies as a close relationship, this is an uphill battle.

This claim is only viable for a small fraction of cases, typically where a partner was in the same car during a fatal accident or directly witnessed the event.

The Importance of Estate Planning

The challenges faced by domestic partners in wrongful death cases underscore the absolute necessity of proactive estate planning for unmarried couples. Taking legal steps while both partners are alive is the single most powerful way to protect each other.

Key documents every unmarried couple in Arizona should have:

A Will: This is the most important document. By creating a will, you can explicitly name your partner as the personal representative (executor) of your estate. This provides them with the legal standing they would need to file a wrongful death claim on behalf of your estate and beneficiaries. A will also ensures your assets go to your partner, rather than being distributed to family members according to state law.
Durable Power of Attorney: This document allows you to appoint your partner to make financial decisions on your behalf if you become incapacitated and unable to do so yourself.
Healthcare Power of Attorney: This appoints your partner as your agent to make medical decisions for you if you cannot communicate your wishes.

Without these documents, a surviving domestic partner can be left with no rights and no voice in legal and medical matters.

Statute of Limitations in Arizona

Time is a critical factor in any potential legal action. Under A.R.S. § 12-542, a wrongful death lawsuit in Arizona must be filed within two years from the date of the person’s death. This is a strict and unforgiving deadline. If a claim is not filed within this two-year window, the right to sue is permanently lost. This makes it essential to act quickly, as the process of getting a personal representative appointed through probate court can take time.

Steps to Take if Your Domestic Partner Has Died Due to Negligence

If you are facing the tragic loss of your domestic partner and believe another party’s negligence is to blame, knowing what to do first can feel impossible. Here is a practical, step-by-step guide to protect your potential legal rights.

Step 1: Secure Legal Counsel Immediately Your first and most important call should be to an experienced Arizona wrongful death attorney. The legal issues facing a domestic partner are far too complex to handle alone. An attorney can immediately evaluate the facts of your case, explain your limited options under Arizona law, and outline a strategy. They can also work to preserve crucial evidence and ensure no deadlines are missed.

Step 2: Locate the Will The existence of a will is the single most important factor in your ability to act. Try to locate any estate planning documents your partner may have created. If you find a will that names you as the personal representative, provide it to your attorney right away. This document is the foundation of your potential case.

Step 3: Initiate the Probate Process If a will exists and names you, your attorney will help you file a petition with the probate court to be formally appointed as the personal representative. This legal step is non-negotiable; you have no authority to act for the estate until a judge grants it. If there is no will, your attorney can advise you on the difficult process of petitioning the court for appointment and the likelihood of success.

Step 4: Gather Evidence and Documentation Begin collecting all relevant documents related to your partner’s death and your relationship. This includes:

The death certificate
Any police, accident, or incident reports
Medical records and bills related to the final injury
Proof of your relationship and shared life (e.g., joint lease or mortgage, joint bank account statements, photos)
All estate planning documents

Step 5: Do Not Speak to Insurance Adjusters The at-fault party’s insurance company will likely contact you very quickly. They may sound sympathetic, but their goal is to minimize their company’s financial liability. They may ask you to provide a recorded statement or sign documents. Politely decline to speak with them and refer them directly to your attorney. Anything you say can be used against the case later.

Domestic partner questions? Contact Life Justice Law Group for guidance today.

Conclusion

The legal landscape in Arizona presents a significant hurdle for a domestic partner seeking justice after the wrongful death of their loved one. The state’s wrongful death statute, A.R.S. § 12-612, does not recognize a domestic partner as a party with the right to file a lawsuit. The law strictly limits this right to a surviving spouse, child, parent, or the personal representative of the estate. This means that without a formal marriage certificate, a surviving partner’s relationship status grants them no standing in court, regardless of the length or depth of their commitment.

The only viable path forward is for the surviving partner to be appointed as the personal representative of the deceased’s estate. This is most reliably achieved when the deceased partner has a valid will naming them as the executor. Without a will, the partner faces a difficult and uncertain battle in probate court against family members who have statutory priority. This reality underscores a vital message for all unmarried couples in Arizona: proactive and thorough estate planning is not just a matter of distributing assets; it is a critical tool for protecting each other and ensuring your partner has a voice when it matters most.

The intersection of probate law and personal injury law is complex, and the two-year statute of limitations creates an urgent timeline. If you have lost your domestic partner in an incident caused by someone else’s actions, you cannot afford to wait. It is imperative that you consult with a knowledgeable Arizona wrongful death attorney without delay. An experienced legal professional can analyze your unique situation, guide you through the necessary court procedures, and fight to ensure that justice is pursued for the person you lost. Your opportunity to hold the responsible parties accountable is time-sensitive, so taking decisive action now is the most important step you can take. Contact us for free evaluation today, and let us fight for the justice your family deserves.

Can a Domestic Partner File a Wrongful Death Lawsuit in Arizona?