In York v. York, decided on June 6, 2018, the SC Court of Appeals reversed the Worker\u2019s Compensation Commission\u2019s finding that a common-law spouse was not entitled to worker\u2019s compensation death benefits after her common-law husband\u2019s 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\u2019s compensation death benefits because a woman who lives \u201cin an illicit relationship with a man to whom she is not legally married\u201d cannot be considered a dependent for purposes of worker\u2019s compensation benefits. Because Yvonne committed the \u201ccrime\u201d 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 \u201950s? The commissioner did base his decision on a 1950 case\u2026 Below we will discuss who receives death benefits from worker\u2019s 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. WHO RECEIVES WORKER\u2019S COMPENSATION DEATH BENEFITS IN SC? 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\u2026 How Do You Decide Who was Wholly Dependent? SC Code Section 42-9-110 says that \u201cA surviving spouse or a child shall be conclusively presumed to be wholly dependent for support on a deceased employee.\u201d 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\u2019s 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\u2019s mother would have to split the benefits with Yvonne. The commissioner found that both Yvonne and the deceased employee\u2019s 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. DOES \u201cFORNICATION\u201d PREVENT A DEPENDENT FROM RECEIVING WORKER\u2019S COMP DEATH BENEFITS? The commissioner found that Yvonne was more dependent on the deceased employee than his mother, but denied benefits to Yvonne because: \tThe commissioner found that she was not a common law spouse; and \tShe was barred from receiving benefits because she was \u201ccommitting fornication\u201d with the deceased employee in an \u201cillicit relationship.\u201d First, let me say that I am a criminal defense lawyer and I have never seen a criminal prosecution in SC for \u201cfornication.\u201d I am confident that if any such prosecution happened today that the statute would be declared unconstitutional \u2013 an issue that the SC Court of Appeals sidestepped and ignored. Day v. Day \u2013 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 \u201cit was not the intention of the legislature to permit a woman to be classed and considered as a dependent within the meaning of Act who lives in illicit relationship with a man to whom she is not legally married.\u201d In Day, the claimant seeking benefits was not just \u201cliving in sin,\u201d but the claimant and deceased employee were in a bigamous marriage \u2013 it was \u201cvoid from the inception.\u201d 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 \u201cfornicating.\u201d 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 \u201cthe 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.\u201d 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\u2026 Why Did the SC Court of Appeals Ignore the Constitutionality of SC\u2019s Fornication Statute? The Court of Appeals practically sanctioned SC\u2019s unconstitutional, gender-biased, outdated fornication law in this opinion. Why? They could have declared the statute unconstitutional \u2013 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 \u2013 the language that the commissioner relied on in denying benefits to Yvonne is nonsensical in today\u2019s 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\u2019s 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\u2019s income will only need to introduce evidence that the claimant was \u201cfornicating\u201d with the employee and the claimant\u2019s benefits will be denied. GOT AXELROD? Whether you are filing an initial worker\u2019s compensation claim in SC or appealing a denial of benefits, your Myrtle Beach worker\u2019s 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\u2019s 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\u2019s comp lawyer today.