Are Family Members of Undocumented Immigrants Eligible for Loss of Consortium Claims?

September 11, 2024

Loss of consortium is a claim that is filed in personal injury cases, specifically in wrongful death cases. It addresses the loss of a family member and the associated losses, such as income and work-related benefits. A family member of the deceased can file this claim, but what if they’re an undocumented immigrant?

It is important for any undocumented immigrant to know their rights under U.S. law. Read on to understand what loss of consortium is and if the family members of undocumented immigrants are eligible for loss of consortium claims.

What Is Loss of Consortium?

Loss of consortium is the loss of connection and support from a loved one. For example, when a father dies, leaving behind a wife and two kids, they collectively lose:

Income and financial support
Companionship
Parenting help
Marital benefits
Pensions
Sexual relations

A wrongful death lawsuit is designed to collect compensation that can help with the loss of family benefits. The direct family of the injured party is able to file a wrongful death claim in court.

Common Causes of Loss of Consortium Claims

Loss of consortium claims are often associated with wrongful death claims. In most cases, these claims stem from the loss of a loved one in a car accident. However, workplace accidents, defective product injuries, and medical malpractice. Loss of consortium claims are not always associated with the death of a loved one.

In some cases, like medical malpractice cases, someone can be injured in a way that causes loss of consortium without the victim dying. A surgery that unintentionally leaves a man impotent, for example, can cause a loss of intimacy, which can lead to legal action.

Undocumented Families’ Legal Rights in Loss of Consortium Cases

It has been established in court that undocumented immigrants are eligible to file wrongful death claims. That means that they have the right to pursue a wrongful death claim after the loss of a family member, provided that they fit all of the other qualifications. This is in line with the federal government’s focus on equal access to justice.

Since undocumented immigrants often face forms of discrimination, several states adopted protections specifically for undocumented people. According to the Immigrant Legal Resource Center, Illinois is one of the states that are most friendly to immigrants.

The Illinois Human Rights Act outlines protections for discrimination for everyone. An expansion of the act within the last several years added specific protections for immigrants in housing and real estate, which is a particularly difficult area for immigrants.

These protections make it illegal to include preferential treatment for people with specific immigrant statuses over others, as well as excluding immigrants based on their status. Illinois has several other pieces of legislation that specifically protect immigrants, including:

The Way Forward Act (2021)
The Trusted Act
The Voices Act

Filing a Loss of Consortium Claim

There is a process for filing a loss of consortium claim that your lawyer will follow. Here is a brief overview to help you understand the process. Our wrongful death lawyers can provide more details specific to your case.

Establish Standing

The first step is to establish standing in this case. While undocumented people have the legal right to file the claim, there are other requirements that you must meet. Working with lawyers that handle personal injury cases, you must prove that you meet the requirements to file a loss of consortium case.

In general, only a direct family member may file a loss of consortium claim. This includes domestic partners (spouses), children, and dependent parents. Without documentation, this is harder to prove, but a lawyer can find the right way to show that you are one of the people related to the victim that qualify for a wrongful death case.

Prove Impact and Damages

The next step is to prove that damages where done and there is an impact on you because of the loss of the relationship. Essentially, the judge needs to see that you and your family are hurt financially and otherwise by the loss of a family member.

Qualify and Quantify Damages

Next, your lawyer needs to qualify and quantify the damages to show how much you should be compensated. Documentation is key here since documents like medical bills, final expenses costs, and similar evidence can show the extent of the financial burden.

Emotional distress can also contribute to the damages, and your lawyer has to determine how much that impact is. If successful, it shows that you did suffer damages that deserve to be compensated for and what the amount of that compensation should likely be.

File the Claim

In the end, your loss of consortium claim is filed as a part of a larger wrongful death or personal injury lawsuit. Your lawyer repeats a similar process for other claims and bundles them together under one case.

When filed as a personal injury lawsuit, all of the different damages are assessed as a single case to make things simpler and more manageable for yourself and the legal system.

Challenges Undocumented Families May Face When Filing a Loss of Consortium Claim

Undocumented people face additional challenges that others may not when filing legal cases. The biggest concern is that you could be exposed as being undocumented, and you risk deportation when filing a personal injury claim. There are protections in place against this, specifically focusing on keeping your immigration status confidential.

Your lawyer is not legally allowed to reveal your status to anyone. However, there is a chance that a court employee or opposing counsel may alert ICE (the immigration agency in the US) of your suspected status, and ICE may be forced to investigate.

Even the threat of this can lead to problems. It is not uncommon for undocumented immigrants to face threats of intimidation and retaliation because they are undocumented.

This is especially true when filing a lawsuit against an employee or other company that wants to scare you off of the lawsuit. There are legal protections in place for this as well, and the ones responsible could face federal charges for their actions.

Another problem is reduced compensation offers, where the opposing party will offer a reduced compensation amount. Their theory is that because you are undocumented, you will take the reduced offer and leave to prevent stirring up trouble that could lead to other problems.

Insurance companies have been caught doing this, but your lawyer can address this form of discrimination and negotiate fair compensation on your behalf.

Don’t Let Being Undocumented Deter You

When pursuing a loss of consortium claim, hiring Rosenfeld Injury Lawyers ensures you have a skilled and dedicated legal team by your side to navigate the complexities of such sensitive cases.

Loss of consortium claims often involve deep emotional and psychological suffering, as they focus on the impact that a loved one’s injury or wrongful death has on their relationships. Whether it’s the loss of companionship, affection, or support, our attorneys understand the profound trauma families experience.

Our law firm specializes in seeking justice for families affected by life-altering injuries, including pursuing maximum compensation for non-economic damages. We have the expertise and resources to defend your rights and explore your legal options, ensuring that the emotional and financial effects of this loss are recognized and compensated.

You deserve to be supported by a legal team that understands the personal nature of these claims and will fight tirelessly to help you and your family seek compensation through this difficult time.