§ 71.005.Evidence Relating to Marital Status

An evidentiary rule drawing a sharp line through one sensitive subject.

Evidence of the actual ceremonial remarriage of the surviving spouse is admissible, if it is true. But the defense is prohibited from directly or indirectly mentioning or alluding to a common-law marriage, an extramarital relationship, or the marital prospects of the surviving spouse.

What is admitted is narrow: an actual ceremonial remarriage. A completed formal marriage is a fact of record, and it bears on the loss the survivor claims.

What is excluded is everything short of that, and the prohibition is severe — the defence may not mention it directly or indirectly, which forecloses insinuation as well as evidence.

The three excluded categories share a quality: each invites a jury to assess the surviving spouse's private life and to discount the loss on that basis. Speculating about "marital prospects" in particular would let the defence argue that an attractive or young widow will remarry and has therefore lost less.

The bar runs only against "the defense." A plaintiff who opens the subject is not governed by this sentence, which is one reason the topic is usually left alone entirely.