Potential Change in Dependency Entitlement for Unmarried Claimants

Written by: Michael E. Memberg, Esq. 

The individuals who can claim workers’ compensation death benefits under Georgia law are defined by O.C.G.A. § 34-9-13. With respect to a surviving spouse, parent, or child of a deceased employee, the process to establish dependency and entitlement to death benefits is rather straightforward. However, O.C.G.A. § 34-9-13(d) also provides the opportunity for other individuals to claim death benefits as either a total or partial dependent. In such cases, the level of dependency is a question of fact to be determined by the ALJ.

Taken at face value, O.C.G.A. § 34-9-13(d) appears to allow any individual to claim dependency status. However, the Georgia Supreme Court specifically prohibited individuals from claiming dependency status, even if they were in fact dependent on the deceased employee, if they cohabited with the deceased employee without being married. Williams v. Corbett, 260 Ga. 668 (1990). This prohibition is based on a public policy that promotes marriage over “meretricious” relationships, i.e. “shacking up.” It also falls in line with O.C.G.A. § 34-9-13(e), which terminates death benefits for a surviving spouse who subsequently cohabitates with someone in a meretricious relationship. Of note, Williams was a split decision at 4-3 with a dissenting opinion that disagreed with the prohibition against unmarried dependents.

The holding in Williams was recently affirmed by the Georgia Court of Appeals in Sanchez v. Carter, 343 Ga.App. 187 (2017). The Claimant in Sanchez lived with and was dependent on the deceased employee but was not married to him either ceremonially or by common law. In light of the clear precedent from Williams, the Georgia Court of Appeals was bound to affirm the denial of death benefits. However, the Court of Appeals also acknowledged the dissenting opinion in Williams and all but suggested the Georgia Supreme Court should review the decision. The Claimant has in fact filed a petition for certiorari with the Georgia Supreme Court, but the decision whether to hear the appeal has not yet been made.

In general, it is rare for the Georgia Supreme Court to hear workers’ compensation appeals. Recent decisions have generally been favorable to employer/insurers. However, this issue arises more out of the State’s view on societal norms than out of an issue specific to workers’ compensation law, and times have changed since the prohibition was upheld by the smallest possible margin almost 30 years ago. Thus, this may be an issue that is more likely to be decided in favor of the Claimant. Of course, the Georgia General Assembly can also step in and amend the Georgia Workers’ Compensation Act to further clarify the definition of dependents regardless of the outcome of the appeal in Sanchez. In any event, we are closely monitoring this issue, as it would open the door for substantial additional litigation over death benefits if Williams is overturned.