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Who is entitled to worker’s compensation death benefits in sc?

Who is entitled to worker’s compensation death benefits in sc?
Axelrod & Associates, P.A.

In York v. York, decided on June 6, 2018, the SC Court of Appeals reversed the Worker’s Compensation Commission’s finding that a common-law spouse was not entitled to worker’s compensation death benefits after her common-law husband’s death.

The commissioner in the case below held that the claimant (Yvonne) was not a common law spouse and was therefore not entitled to worker’s compensation death benefits because a woman who lives “in an illicit relationship with a man to whom she is not legally married” cannot be considered a dependent for purposes of worker’s compensation benefits.

Because Yvonne committed the “crime” of fornication, the commissioner found that she was not entitled to benefits even though she was dependent on the deceased at the time of his death.

Wait, what? Are we living in the ’50s?

The commissioner did base his decision on a 1950 case…

Below we will discuss who receives death benefits from worker’s comp, when a common law spouse is entitled to benefits, and how the SC Court of Appeals sidestepped an opportunity to address what is clearly an unconstitutional gender-bias in SC law.


SC Code Section 42-9-290 says that, if an employee is killed on the job, the employer must provide death benefits to anyone who was wholly dependent on the employee for support:

(A) If death results proximately from an accident and within two years of the accident or while total disability still continues and within six years after the accident, the employer shall pay or cause to be paid, subject, however, to the provisions of the other sections of this title, in one of the methods provided in this chapter, to the dependents of the employee wholly dependent upon his earnings for support at the time of the accident, a weekly payment equal to sixty-six and two-thirds percent of his average weekly wages…

How Do You Decide Who was Wholly Dependent?

SC Code Section 42-9-110 says that “A surviving spouse or a child shall be conclusively presumed to be wholly dependent for support on a deceased employee.”

Section 42-9-120 also permits the court to determine who else may have been dependent on the deceased at the time of their death:

In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the facts as the facts may be at the time of the accident; but no allowance shall be made for any payment in lieu of board and lodging or services and no compensation shall be allowed unless dependency existed for a period of three months or more prior to the accident.

What if There is More than One Dependent?

SC Code Section 42-9-130 says that if there is more than one person who was wholly dependent on the employee’s earnings, the benefits will be divided between them:

If there is more than one person wholly dependent, the death benefit shall be divided among them and the persons partly dependent, if any, shall receive no part thereof. If there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.

On the other hand, if there are no dependents, Section 42-9-140 says that the benefits will go to any surviving nondependent children, and, if there are no surviving nondependent children, it goes to the surviving parents of the deceased.

In this case, the real question was whether the employee’s mother would have to split the benefits with Yvonne.

The commissioner found that both Yvonne and the deceased employee’s mother were both dependent on the employee, which means that the mother must split the benefits with Yvonne if Yvonne even if she was not a common law spouse.


The commissioner found that Yvonne was more dependent on the deceased employee than his mother, but denied benefits to Yvonne because:

  • The commissioner found that she was not a common law spouse; and
  • She was barred from receiving benefits because she was “committing fornication” with the deceased employee in an “illicit relationship.”

First, let me say that I am a criminal defense lawyer and I have never seen a criminal prosecution in SC for “fornication.” I am confident that if any such prosecution happened today that the statute would be declared unconstitutional – an issue that the SC Court of Appeals sidestepped and ignored.

Day v. Day – Illicit Relationships and Fornication

The commissioner based his decision in part on the 1950 SC case Day v. Day, 216 S.C. 334, 58 S.E.2d 83 (1950), where the Court held that “it was not the intention of the legislature to permit a woman to be classed and considered as a dependent within the meaning of [the] Act who lives in [an] illicit relationship with a man to whom she is not legally married.”

In Day, the claimant seeking benefits was not just “living in sin,” but the claimant and deceased employee were in a bigamous marriage – it was “void from the inception.” Because of this, even though the Day Court found that the claimant was a dependent, they denied benefits to her.

In York, the commissioner denied benefits not because there was a bigamous marriage, but because the claimant (Yvonne) and the employee were living together, were not married, and were “fornicating.”

Is Fornication a Crime in SC?

Fornication, a term often associated with religious prohibitions against sex outside of marriage, is indeed a crime in SC.

SC Code Section 16-15-80 defines fornication as “the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.”

Section 16-15-60 says that fornication is punishable by no less than 6 months and up to a year in jail:

Any man or woman who shall be guilty of the crime of adultery or fornication shall be liable to indictment and, on conviction, shall be severally punished by a fine of not less than one hundred dollars nor more than five hundred dollars or imprisonment for not less than six months nor more than one year or by both fine and imprisonment, at the discretion of the court.

Yes, under SC law, you can go to jail for as much as a year for having sex if you are not married…

Why Did the SC Court of Appeals Ignore the Constitutionality of SC’s Fornication Statute?

The Court of Appeals practically sanctioned SC’s unconstitutional, gender-biased, outdated fornication law in this opinion. Why?

They could have declared the statute unconstitutional – it clearly is, and the appellant raised that issue although the Court of Appeals declined to answer it.

They could have overruled Day v. Day – the language that the commissioner relied on in denying benefits to Yvonne is nonsensical in today’s American culture and will likely result in further injustices.

Instead, they reversed the commissioner because there was no evidence of fornication in the record below.

The obvious implication and the current state of the law as stated by the Court of Appeals, in this case, is that fornication is grounds to deny worker’s comp death benefits to a dependent who was not married to the deceased.

In future cases, a mother, father, child, or other dependent who wants to deny benefits to a live-in girlfriend or boyfriend who was wholly dependent on the employee’s income will only need to introduce evidence that the claimant was “fornicating” with the employee and the claimant’s benefits will be denied.


Whether you are filing an initial worker’s compensation claim in SC or appealing a denial of benefits, your Myrtle Beach worker’s comp attorney at Axelrod and Associates can help you to prepare your claim, gather the medical documentation you will need, and represent you in court to get the benefits that you are entitled to.

Call now and schedule a free consultation with a SC worker’s compensation attorney on the Axelrod team. Call us at 843-916-9300 or contact us through our website to speak with an Horry County worker’s comp lawyer today.

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