Interspousal tort immunity is the doctrine that bars tort suits between persons married to each other. The doctrine has its roots in the common-law principle that a married couple was one legal entity. Wives could not sue in tort in their own names because they were viewed as their husbands' chattels. Thus, they could only sue in tort by joining their husbands as plaintiffs. The doctrine of interspousal immunity continued to prevent either spouse from suing the other in tort even after wives were permitted to sue for torts in their own names. New rationales were advanced for the immunity, which were primarily the preservation of marital harmony and the prevention of collusive suits.

The Separate Legal Identity of a Wife

The concept upon which this immunity was predicated no longer exists because all American jurisdictions have married women emancipation acts, which confer upon a wife a separate legal identity. The emancipation of American women was not automatically extended to the field of personal torts. Many courts held that personal tort actions between husband and wife would destroy the peace and harmony of the home so that such actions were held to be against public policy.

For a long time, interspousal immunity remained in place in many states to bar actions for negligently caused injuries. These states retained the immunity doctrine partly out of concern that a couple might collude to defraud their insurance company for injuries that arose accidentally and partly out of concern that permitting negligence actions would open the floodgates of litigation to every domestic dispute.

Interspousal Tort Immunity Abrogated

Although it has been abrogated in virtually every jurisdiction for intentional torts, the interspousal immunity doctrine still survives in several states to bar interspousal suits for some negligence-based torts. Even states that have abrogated the immunity have attempted to retain some inchoate marital privilege to bar interspousal suits for some conduct that would be considered tortious if committed by a third party.

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