When spouses commit torts against each other, a cause of action may or may not be available to the injured spouse. It depends upon the jurisdiction and the type of injury.
Historically, spouses could not bring actions against each other to recover damages for personal injuries while they were married because of the doctrine of interspousal immunity. The denial of a cause of action was based on the principles of preserving marital harmony, avoiding fraud or collusion if the tort was covered by insurance, and preventing the spouse who was liable for the tort from benefiting from a judgment in favor of his injured spouse. Interspousal immunity still survives intact in some jurisdictions, although some jurisdictions have the following exceptions.
In some jurisdictions that apply interspousal immunity, a spouse who is injured prior to marriage may bring an action against the other spouse during the marriage. However, other immunity jurisdictions hold that the marriage extinguishes the right to bring an action for a premarital tort.
Action After Spouse Dies
Some immunity jurisdictions permit an injured spouse to sue a deceased spouse’s estate for a tort that was committed by the deceased spouse during the marriage because the principles of preserving marital harmony and preventing collusion between spouses do not apply after one spouse’s death. Other immunity jurisdictions, however, do not recognize this exception.
Action After Divorce
As is the case when a spouse dies, the principles supporting interspousal immunity do not apply after a married couple divorces. Thus, some immunity jurisdictions allow an injured spouse to sue a former spouse for a tort that was committed during the marriage. Other jurisdictions strictly adhere to the interspousal immunity rule if the tort occurred during the marriage.
Willful, Wanton or Intentional Torts
Some immunity jurisdictions permit interspousal actions if the tort was intentional rather than negligent because it would be the conduct causing the tort that disrupts the marital harmony rather than the filing of a subsequent lawsuit. Spouses who commit such acts against each other are also unlikely to be in collusion with one another.
Motor Vehicle Torts
Some courts that uphold interspousal immunity allow an exception for actions between spouses arising from motor vehicle accidents because the real defendant is usually an insurer.
Cause of Action Permitted
Most jurisdictions have abrogated the doctrine of interspousal immunity and allow spouses to sue each other. The abrogation is based on the inadequacy of divorce or criminal law as alternatives to a lawsuit, the court’s ability to detect collusion between spouses, and the belief that a wronged party should be able to recover for his injuries.