Your husband was hit on Highway 17, or your wife fell at a store in Mount Pleasant, and the injury did not stop at the hospital door. You are now the driver, the nurse, the only parent on duty and the only paycheck, and the person you married is in pain and not himself or herself. When you ask about the claim, everyone talks about the injured spouse. Loss of consortium in South Carolina is the part of the law that talks about you.

The statute behind loss of consortium in South Carolina

S.C. Code § 15-75-20 is short. It says that “any person may maintain an action for damages arising from an intentional or tortious violation of the right to the companionship, aid, society and services of his or her spouse.” Four words carry the claim. Companionship and society are the relationship itself: the shared life, affection, conversation and intimacy of a marriage. Aid and services are the practical side: the income, the work around the house, the care of children and the help each spouse gives the other.

The statute has one proviso. The consortium claim “shall not include any damages recovered prior thereto by the injured spouse.” In plain terms, the two spouses cannot both be paid for the same loss. If the injured spouse has already recovered the medical bills or the lost wages, the other spouse cannot claim them again. What the consortium claim covers is what the uninjured spouse lost personally.

A separate claim, not a piece of your spouse's case

This is the point most people, and some adjusters, get wrong. In some states the spouse's claim is “derivative,” meaning it rises and falls with the injured person's case. South Carolina is not one of them. In Preer v. Mims, the South Carolina Supreme Court said plainly that “under South Carolina law, unlike that of some other states, loss of consortium is an independent action, not derivative,” and reversed a trial judge who had thrown out a wife's claim because her husband's had been dismissed.

The Court had said the same thing a decade earlier in Graham v. Whitaker: one spouse's cause of action for loss of consortium “is a different and distinct cause of action from one maintained by the injured spouse,” and a judgment against one spouse is not a bar to the other. In practice that means your claim is pleaded separately, valued separately and, if it comes to it, tried on its own evidence.

It also means an insurer that settles with your spouse has not settled with you unless you signed the release.

What a loss of consortium claim pays for

The damages are almost entirely what the law calls noneconomic. S.C. Code § 15-38-15, the statute that governs how fault is shared among defendants, lists “loss of companionship” alongside pain, suffering and loss of enjoyment as a form of noneconomic loss. The evidence is the marriage before and after: who did what in the household, what the couple did together, how the injured spouse's temperament, mobility or intimacy has changed, and what the uninjured spouse now does that a paid caregiver would otherwise do. Friends, family, a pastor and treating providers are often the best witnesses, because they saw both versions of the marriage.

The claim is strongest where the injury is lasting: a brain injury, a spinal cord injury, an amputation, chronic pain or a disfigurement that has changed how the couple lives. It exists for lesser injuries too, but its value follows the depth and length of the change. For the injured spouse's own losses, see our guide to the damages an injured person can claim in South Carolina.

Who can bring the claim, and when it starts

The statute speaks of a spouse. It does not mention partners who are not married, parents or children, and the claim it creates belongs to a husband or wife. The marriage must exist at the time of the injury; a couple who marry afterward do not acquire a consortium claim for an injury that predates the wedding, because the right the statute protects did not yet exist.

As to timing, the Court in Preer explained that the right of action “does not accrue until the loss of the services, society and companionship of the spouse has actually occurred,” which it defined as the point when the spouse sustained the injuries. For most crash and fall cases that is the day of the event, and the general three-year limitation in S.C. Code § 15-3-530 applies. Claims against a government defendant run on a shorter clock, and the safest course is to treat your claim's deadline as the same day as your spouse's and file both together.

If your spouse did not survive

Loss of consortium is a claim by a living spouse for a living spouse. Where the injury proves fatal, the law shifts to South Carolina's wrongful death statute, which gives the surviving spouse and family a different claim with its own rules. If you are reading this after a death, call us and we will explain how that claim works.

How the claim is handled in practice

Frequently asked questions

Is loss of consortium only for married couples in South Carolina?

The statute creates the claim for a “spouse,” and that is the claim this article describes. It does not mention unmarried partners, children or parents.

Can I bring the claim if my spouse settles?

Your claim is independent, so a settlement of your spouse's claim does not end yours unless you were a party to the release. Read every release before anyone signs it, and make sure your claim was valued, not folded in.

Do I have to file a separate lawsuit?

The claims are legally separate but are usually filed and tried together, with each spouse as a named plaintiff. What matters is that yours is pleaded and valued on its own.

How much is a loss of consortium claim worth?

There is no schedule. The value follows how much the marriage has changed and for how long, and it is decided by a jury on the evidence if the case does not settle. A lasting, disabling injury supports a substantial claim; a full recovery in a few weeks supports a modest one.

How long do I have?

Generally three years from the day your spouse was injured, and shorter where a government defendant is involved. File alongside your spouse's claim rather than treating yours as something to add later.

Talk to a Charleston personal injury attorney about your own claim

The spouse of a seriously injured person carries the injury too, and South Carolina law says so. Klok Law evaluates both spouses' claims together in serious injury cases across Charleston, Mount Pleasant, Berkeley and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.