concurring and dissenting: I concur with that portion of the majority opinion which affirms the trial court and upholds the plaintiffs’ claim based on an alleged willful and intentional tort of the defendant. I heartily approve the creation of an exception to the doctrine of interspousal tort immunity in cases where a husband or wife inflicts willful and intentional injury upon the other. I respectfully dissent, however, from that portion of the opinion which bars the plaintiffs’ claim based on negligence or reckless misconduct on the part of the defendant. The basic injustice which inheres in the doctrine of interspousal immunity is well illustrated in this case. The children of a deceased father are precluded from recovery of damages for his wrongful death resulting from negligent or wanton misconduct on the part of their stepmother. The public policy behind the doctrine of interspousal immunity is that such suits should be *730barred because they will disrupt the harmony of the marital relationship. This public policy, whatever its relevance in other contexts, clearly is inapplicable where the death of one or both spouses terminates the marriage. At that point, the marital relationship, having been dissolved by death, can no longer be disrupted and the need for preserving marital harmony is completely lacking in pertinence. Asplin v. Amica Mut. Ins. Co., _R.I__, 394 A.2d 1353 (1978).
I further question the logic and justice in a rule which permits one spouse to maintain an action for willful and intentional tort committed against him or her by the other spouse, but denies that spouse the right to maintain an action for wanton misconduct. Wanton misconduct has been defined as an act performed with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act. See PIK Civ. 2d 3.02 (1977). We have held in this state that wantonness is distinct from negligence and differs in kind. Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P.2d 980 (1948); Srajer v. Schwartzman, 164 Kan. 241, 188 P.2d 971 (1948).
Simply stated, I do not see why a wife or husband should be permitted to recover damages from a spouse who intentionally injures her or him and be denied the right to recover damages in tort where the other spouse realizes the imminence of danger and injures the other with a reckless disregard or complete indifference to the probable consequences of the act. I, therefore, respectfully dissent as to that portion of the opinion which denies relief to the plaintiffs in this case on their claim based on the theory of negligence or wanton misconduct on the part of the defendant.
Herd, J., joins the foregoing concurring and dissenting opinion.