Current Status Introducing Body:House Bill Number:4127 Ratification Number:588 Act Number:475 Primary Sponsor:Wilkins Type of Legislation:GB Subject:Wrongful death or survival actions Date Bill Passed both Bodies:Jun 02, 1992 Computer Document Number:436/11920.SD Governor's Action:S Date of Governor's Action:Jun 23, 1992 Introduced Date:Jan 14, 1992 Date of Last Amendment:Jun 02, 1992 Last History Body:------ Last History Date:Jun 23, 1992 Last History Type:Act No. 475 Scope of Legislation:Statewide All Sponsors:Wilkins Type of Legislation:General Bill
Bill Body Date Action Description CMN
---- ------ ------------ ------------------------------ ---
4127 ------ Jun 23, 1992 Act No. 475
4127 ------ Jun 23, 1992 Signed by Governor
4127 ------ Jun 04, 1992 Ratified R 588
4127 Senate Jun 02, 1992 Concurred in House amendment,
enrolled for ratification
4127 House Jun 02, 1992 Senate amendments amended,
returned to Senate
4127 Senate May 27, 1992 Amended, read third time,
returned with amendment
4127 Senate May 20, 1992 Amended, read second time,
ordered to third reading with
notice of general amendments
4127 Senate May 07, 1992 Committee Report: Favorable 11
with amendment
4127 Senate Apr 06, 1992 Introduced, read first time, 11
referred to Committee
4127 House Apr 02, 1992 Read third time, sent to
Senate
4127 House Apr 01, 1992 Amended, read second time
4127 House Mar 25, 1992 Committee Report: Favorable 25
with amendment
4127 House Jan 14, 1992 Introduced, read first time, 25
referred to Committee
View additional legislative information at the LPITS web site.
(A475, R588, H4127)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 15-51-41 AND 15-51-42 SO AS TO ESTABLISH CERTAIN PROCEDURES FOR OBTAINING COURT APPROVAL OF ANY SETTLEMENT OF WRONGFUL DEATH OR SURVIVAL ACTIONS; TO AMEND SECTION 62-1-302, AS AMENDED, RELATING TO THE JURISDICTION OF THE SOUTH CAROLINA PROBATE COURT, SO AS TO PROVIDE THAT THE PROBATE COURT HAS CONCURRENT JURISDICTION WITH THE CIRCUIT COURT TO APPROVE SETTLEMENTS OF WRONGFUL DEATH OR SURVIVAL ACTIONS AS PROVIDED IN SECTIONS 15-51-41 AND 15-51-42; AND TO ADD SECTION 62-7-112 SO AS TO PROVIDE FOR THE MANNER IN WHICH A REVOCABLE INTER VIVOS TRUST MAY BE CREATED AND FOR ITS EFFECT IN REGARD TO DETERMINING A SPOUSE'S ELECTIVE SHARE RIGHTS.
Be it enacted by the General Assembly of the State of South Carolina:
Approval of settlements of wrongful death or survival actions
SECTION 1. The 1976 Code is amended by adding:
"Section 15-51-41. Any settlement of a wrongful death or survival action must be approved by either a probate court, circuit court, or United States District Court, as provided in Section 15-51-42.
Section 15-51-42. (A) Only a duly appointed personal representative, as defined in Section 62-1-201(30), shall have the authority to settle wrongful death or survival actions.
(B) If no action is pending, the personal representative shall petition either the probate or the circuit court of this State seeking approval of a proposed settlement. The petition must be verified by the personal representative and shall set forth, in terms satisfactory to the court in which the petition is filed, the basic facts surrounding the death of the decedent, the pertinent facts surrounding the liability of the alleged wrongdoer, the amount of insurance available to pay for damages, the terms of the proposed settlement, the statutory beneficiaries of the wrongful death or survival action, the heirs at law or appropriate devisees of the estate, the appropriate creditors, the amount of their claims, and, if the personal representative has retained legal counsel, the terms and provisions of the agreement with respect to attorney's fees and costs.
It is not necessary that a personal representative be represented by legal counsel for the court to consider the petition and approve the settlement. If the personal representative is represented by legal counsel, the counsel shall sign a certificate attesting to the fact that he is of the opinion that the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent.
The court shall schedule a hearing and receive into evidence those facts that the court considers necessary and proper to evaluate the settlement. After conducting this inquiry, the court shall issue its order either approving or disapproving the proposed settlement. If the settlement is approved by the court, the personal representative has the power to conclude the settlement, including the execution of those documents as the settlement terms contemplate.
(C) If a wrongful death or survival action has been filed in state court and:
(1) the settlement agreement between the parties is reached before the matters reach trial, the personal representative shall petition the court in which the wrongful death or survival action has been filed and follow the procedure for settlement as provided in (B) above;
(2) the settlement agreement is reached during the trial, or after trial but before notice of appeal is filed, of either the wrongful death or survival action, then no petition is necessary, and the court shall conduct a hearing, at which the parties may present to the court the pertinent facts and information, including that information required in subsection (B) above, which the court may require in order to consider whether to approve or disapprove the settlement. If the court finds the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent, then the court shall issue its order approving the settlement;
(3) the settlement agreement is reached after notice of appeal is filed, the personal representative shall petition the State Supreme Court to remand the case to the circuit court for consideration of the settlement agreement in accordance with the procedure outlined in (2) above.
(D) For any actions pending in the federal courts, the same procedure may be followed, but the federal court, at its discretion, may issue an order transferring the case to state court for consideration of the proposed settlement.
(E) Once a settlement agreement has been approved by an appropriate court, the person paying the settlement proceeds and all those on whose behalf the payment is made and any other persons who could be responsible because of the actions on whose behalf the settlement proceeds are being paid, are relieved and discharged from further liability and shall have no obligation or legal duty to see to the appropriate or proper distribution of the settlement proceeds among either the wrongful-death beneficiaries or those entitled to the proceeds of the settlement of the survival action. Once payment has been made to the personal representative, the obligations of the person making the payment and those on whose behalf the payment is being made, and all those who could be responsible for the actions of these persons, are fully and completely released and finally and forever discharged from any further responsibility in connection with the action or actions.
(F) Any person bringing a wrongful death or survival action in a court other than the probate court must notify the probate court of this action within ten days after the filing of the action. The provisions of this subsection apply to wrongful death or survival actions filed after the effective date of this section."
Concurrent jurisdiction
SECTION 2. Section 62-1-302(b) of the 1976 Code is amended to read:
"(b) The court's jurisdiction over matters involving wrongful death or actions under the survival statute is concurrent with that of the circuit court and shall extend only to the approval of settlements as provided in Sections 15-51-41 and 15-51-42."
Revocable inter vivos trust creation and effect
SECTION 3. Chapter 7 of Title 8 of the 1976 Code is amended by adding:
"Section 62-7-112. A revocable inter vivos trust may be created either by declaration of trust or by a transfer of property and is not rendered invalid because the trust creator retains substantial control over the trust including, but not limited to, (1) a right of revocation, (2) substantial beneficial interests in the trust, or (3) the power to control investments or reinvestments. Nothing herein, however, shall prevent a finding that a revocable inter vivos trust, enforceable for other purposes, is illusory for purposes of determining a spouse's elective share rights under Section 62-2-201 et seq. A finding that a revocable inter vivos trust is illusory and thus invalid for purposes of determining a spouse's elective share rights under Section 62-2-201 et seq. shall not render that revocable inter vivos trust invalid, but would allow inclusion of the trust assets as part of the probate estate of the trust creator only for the purpose of calculating the elective share and would make available the trust assets for satisfaction of the elective share only to the extent necessary under Section 62-2-207."
Time effective
SECTION 4. This act takes effect upon approval by the Governor.
Approved the 23rd day of June, 1992.