H. B. 2178
(By Delegates Fleischauer, Amores,
Hrutkay, Warner and Susman)
[Introduced January 14, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections ten and eleven, article four,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further amend
said article by adding thereto a new section, designated
section ten-a; to amend article two, chapter forty-eight of
said code by adding thereto a new section, designated section
six hundred five; and to amend and reenact section one hundred
three, article three of said chapter, all relating to
marriages prohibited by law on account of either party having
a wife or husband of a prior marriage; determining workers'
compensation death benefits and dependents; providing that
certain void marriages be deemed valid marriages for purposes
of claiming workers' compensation death benefits; and
providing that bigamous marriages are void ab initio without
the necessity of a judicial determination.
Be it enacted by the Legislature of West Virginia:
That sections ten and eleven, article four, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section ten-a; that article two, chapter forty-eight of
said code be amended by adding thereto a new section, designated
section six hundred five; and that section one hundred three,
article three of said chapter be amended and reenacted, all to read
as follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his or her employment,
causes death, and disability is continuous from date of such injury
until date of death, or if death results from occupational
pneumoconiosis or from any other occupational disease, the benefits
shall be in the amounts and to the persons as follows:
(a) Death benefits are payable:
(1) When a personal injury suffered by an employee causes his
or her death, if:
(A) The personal injury occurs in the course of and as a
result of his or her employment; and
(B) Disability is continuous from the date of the injury until
the date of death; or
(2) When death results from occupational pneumoconiosis or
from any other occupational disease.
(a)
(b)(1)
If there be are no dependents, the disbursements
shall be are limited to the expense provided for in sections three
and four of this article.
(b) (2) If there be are dependents as defined in subdivision
subsection (d) of this section, such the dependents shall be paid
for as long as their dependency shall continue continues, in the
same amount as was paid or would have been paid to the deceased
employee for total disability, had he or she lived. The order of
preference of payment and length of dependence shall be is as
follows:
(1) (A) The following persons are jointly entitled to the
amount of benefits payable as a result of the death of the
decedent:
(i) A dependent widow or widower, including a widow or widower
of a deemed valid marriage, until death or remarriage of such the
widow or widower; and
(ii) Any child or children dependent upon the decedent, until
each such child shall reach reaches eighteen years of age: or
where such Provided, That if a child after reaching eighteen years
of age continues as a full-time student in an accredited high school, college, university, business or trade school, until such
child reaches the age of twenty-five years; or
(iii) if An invalid child, to continue as long as such child
remains an invalid. All such persons shall be jointly entitled to
the amount of benefits payable as a result of employee's death.
(2) (B) A wholly dependent father or mother, until death.
(3) (C) Any other wholly dependent person, for a period of six
years after the death of the deceased employee.
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of
death, the payment shall be fifty dollars a month, to continue for
such portion of the period of six years after the death, as the
division may determine, but no such partially dependent person
shall receive compensation payments as a result of the death of
more than one employee.
Compensation under subdivisions (b) and (c) hereof shall,
except as may be specifically provided to the contrary therein,
cease upon the death of the dependent, and the right thereto shall
not vest in his or her estate.
(d) "Dependent", as used in this chapter, shall mean a widow,
widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided herein, invalid
child or posthumous child, who, at the time of the injury causing
death, is dependent, in whole or part, for his or her support upon the earnings of the employee, stepchild under eighteen years of
age, or under twenty-five years of age when a full-time student as
provided herein, child under eighteen years of age legally adopted
prior to the injury causing death, or under twenty-five years of
age when a full-time student as provided herein, father, mother,
grandfather or grandmother, who at the time of the injury causing
death, is dependent, in whole or in part, for his or her support
upon the earnings of the employee; and invalid brother or sister
wholly dependent for his or her support upon the earnings of the
employee at the time of the injury causing death.
(e) If a person receiving permanent total disability benefits
dies from a cause other than a disabling injury leaving any
dependents as defined in subdivision (d) of this section, an award
shall be made to such dependents in an amount equal to one hundred
four times the weekly benefit the worker was receiving at the time
of his or her death and be paid either as a lump sum or in periodic
payments, at the option of the dependent or dependents. Direct
premium rating experience charges for the payment of such benefits
granted as a result of a second injury award of permanent total
disability shall not be made to the employee's employer. It is the
intent of the Legislature that the amendments to this subsection
enacted during the regular session of the Legislature in the year
one thousand nine hundred ninety-nine be construed so as to make
dependents eligible for benefits under this subsection retroactive to the second day of February, one thousand nine hundred
ninety-five.
§23-4-10a. Relationship as widow or widower based upon a deemed
valid marriage.
(a) If a person claiming dependent status as a widow or
widower cannot establish a valid marital relationship under the law
of this state, the person may be eligible for benefits based upon
a deemed valid marriage, as provided for in this section. The
person will be deemed to be a widow or widower of the decedent if,
in good faith, he or she went through a marriage ceremony with the
decedent that would have resulted in a valid marriage except for a
legal impediment.
(b) For purposes of this section:
(1) "Deemed valid marriage" means a ceremonial marriage
considered valid for purposes of paying death benefits even though
the marriage was void ab initio because of a legal impediment.
(2) "Legal impediment" means an impediment that results
because: (A) A previous marriage had not ended at the time of the
ceremony; or (B) there was a defect in the procedure followed in
connection with the intended marriage.
(3) "Good faith" means that at the time of the ceremony, the
person claiming dependent status as a widow or widower did not know
that a legal impediment existed, or if the person did know, he or
she thought that it would not prevent a valid marriage.
(c) To be entitled to benefits as a widow or widower as the
result of a deemed valid marriage, the person claiming dependent
status as a widow or widower and the decedent must have been living
in the same household at the time of the decedent's death.
§23-4-11. To whom death benefits paid.
The benefits, in case of Death benefits shall be paid to such
one or more dependents of the decedent, or to such other persons
for the benefit of all of the dependents, as may be determined by
the commissioner. The commissioner may apportion the benefits
among the dependents in such manner as he or she may deem just and
equitable. Payment to a dependent subsequent in right may be made
if the commissioner deems proper, and shall operate to discharge
all other claims therefor.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. MARRIAGE.
§48-2-605. Bigamous marriage void ab initio.
A marriage that is prohibited by law on account of either of
the parties having a wife or husband of a prior marriage, when the
prior marriage has not been terminated by divorce, annulment or
death, is void ab initio.
ARTICLE 3. ANNULMENT OR AFFIRMATION OF MARRIAGE.
§48-3-103. Voidable marriages.
(a) The following marriages are voidable and are void from the
time they are so declared by a judgment order of nullity:
(1) Marriages that are prohibited by law on account of either
of the parties having a wife or husband of a prior marriage, when
the prior marriage has not been terminated by divorce, annulment or
death;
(2) (1) Marriages that are prohibited by law on account of
consanguinity or affinity between the parties;
(3) (2) Marriages solemnized when either of the parties:
(A) Was an insane person, idiot or imbecile;
(B) Was afflicted with a venereal disease;
(C) Was incapable, because of natural or incurable impotency
of the body, of entering into the marriage state;
(D) Was under the age of consent; or
(E) Had been, prior to the marriage and without the knowledge
of the other party, convicted of an infamous offense;
(4) (3) Marriages solemnized when, at the time of the
marriage, the wife, without the knowledge of the husband:
(A) Was with child by some person other than the husband; or
(B) Had been, prior to the marriage, notoriously a prostitute;
or
(5) (4) Marriages solemnized when, prior to the marriage, the
husband, without the knowledge of the wife, had been notoriously a
licentious person.
NOTE: The purposes of this bill include (1) amending the
workers compensation statute to address when death benefits are
payable and to whom they are payable; (2) providing that a bigamous
marriage is void ab initio; and, (3) deleting current law which
provides that a marriage is voidable if either of the parties have
a spouse from another previous marriage that has never been
terminated.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§23-4-10a and §48-2-605 are new; therefore, strike-throughs
and underscoring have been omitted.