Death benefits are payable to a legal beneficiary if an employee dies as the result of a compensable injury. TLC Section 408.181(a); APD 000436. A legal beneficiary is a person who is entitled to receive a death benefit under the Act. TLC Section 401.011(29). In deciding whether a person is a proper legal beneficiary for purposes of entitlement to workers’ compensation benefits, the ALJ is not necessarily bound by a court order on heirship. APD 061381-s.

Child

A child is a son or daughter, an adopted child, or a stepchild who is a dependent of the IE. TLC Section 401.011(7). The term “child” also includes a child that was conceived but unborn at the time of the deceased employee’s death. APD 011542-s. A child who is eligible to receive death benefits must fall into one of three categories:

1. A minor at the time of the deceased employee’s death.
2. A full-time student attending an accredited educational institution under the age of 25.
3. A dependent of the deceased employee at the time of the employee’s death. TLC Section 408.182(f)(1).

A deceased employee’s child is not eligible to receive death benefits if the child’s parent-child relationship with the employee has been terminated by court order and the child has been adopted by another individual. Patton v. Shamburger, 431 S.W.2d 506 (Tex. 1968); APD 002112. However, a child will remain eligible to receive death benefits if he or she was not adopted by another individual after the parent-child relationship was terminated. APD 991694. Under 28 TAC Section 132.4(b), an individual claiming benefits as the deceased employee’s child must submit proof of the relationship either to the IC or along with his or her claim for death benefits. An adult child claiming death benefits must also present proof under 28 TAC Section 132.2 to establish that at the time of the deceased employee’s death they were a dependent of the employee at the time of the employee’s death. 28 TAC Section 132.4(g). A stepchild must prove the deceased employee was married to the stepchild’s parent, and that the stepchild was a dependent of the employee at the time of the employee’s death. 28 TAC Section 132.4(d); APD 980224.

Eligible Parent

[Applies to claims based on a compensable injury that occurs on or after September 1, 2009] If there is no eligible spouse, no eligible child, no eligible grandchild, and no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the employee, death benefits shall be paid in equal shares to the surviving mother or father of the employee, including an adoptive parent or stepparent but not a parent whose parental rights have been terminated, and who has filed a claim for those benefits with DWC or the IC not later than one year from the date of the employee’s death from the compensable injury. TLC Sections 408.182(d-1), (d-2) (applies to a claim for death benefits filed on or after June 10, 2023), and (f)(4). The claim for death benefits must designate all eligible parents and necessary information for payment to the eligible parents; an IC will not be liable for payment to any eligible parent not designated on the claim for death benefits. Failure to file a claim in the time required bars the claim unless good cause exists for the failure to file a claim under this section. TLC Section 408.182(d-2).

Grandchild

A deceased employee’s grandchild is entitled to receive death benefits if the grandchild was a dependent of the employee at the time of their death unless the grandchild’s own parent is eligible for benefits. TLC Section 408.182(f)(2); 28 TAC Section 132.5(a); APD 931114. Under 28 TAC Section 132.5(b) an individual claiming benefits as the deceased employee’s grandchild must submit proof of the relationship either to the IC or along with his or her claim for benefits; that section also requires the individual to present evidence of a dependent status. 28 TAC Section 132.5(b); APD 931114.

Spouse

The deceased employee’s surviving spouse is entitled to receive death benefits unless the following three elements are met:

1. The surviving spouse abandoned the employee.
2. Without good cause.
3. For more than one year immediately preceding the employee’s death. TLC Section 408.182(f)(3); 28 TAC Section 132.3.

All three elements must be met before a spouse can be denied death benefits. U.S. Fire Ins. Co. v. Williams, 955 S.W.2d 267 (Tex. 1997).

Under 28 TAC Section 132.3(b), the surviving spouse shall be deemed to have abandoned the employee if the surviving spouse and the employee had not been living in the same household for more than one year preceding the employee’s death unless the spouse is:

1. hospitalized;
2. in a nursing home;
3. or living apart due to career choices, military duty, or other reasons where it is established their separation is not due to the pending breakup of the marriage. The burden is on a person who opposes the claim of a surviving spouse to prove the spouse abandoned the deceased employee.

Whether a surviving spouse has abandoned the deceased employee is a question of fact for the ALJ to resolve. APD 982874.

Good Cause for Spousal Abandonment, Beneficiary Entitled to Death Benefits

Although the deceased employee left his wife (claimant number one) in 1994, the two were still married at the time of his death from a compensable injury. After leaving claimant number one but while they were still married, the employee lived with two other women. Claimant number one and the employee had not lived in the same house for more than one year preceding his death. The ALJ determined that claimant number one had abandoned the employee but found no good cause for the spousal abandonment. The AP affirmed the ALJ’s determination as to spousal abandonment. However, the AP reversed the ALJ’s good cause determination and found good cause for the spousal abandonment. Claimant number one was thus entitled to death benefits as a legal beneficiary of the employee. APD 021004.

No Spousal Abandonment

The deceased employee and his wife separated in September 1990. The employee moved into a separate residence; however, he left many of his belongings at the house he and his wife had shared, he continued to frequently stay at his wife’s house, and he maintained sexual relations with his wife. The employee and his wife jointly owned the house as well as a vacation home in New Mexico, where they continued to spend holidays and vacations together. The employee and his wife reconciled when she was injured in June 1993, and he moved back into the jointly shared house to care for his wife during her convalescence. The employee had filed for divorce in 1991, but he did not pursue any action on it until the reconciliation ended later in 1993. The employee’s mother had a different version of events. The ALJ, believing the wife’s testimony, determined that the wife had not abandoned the employee and found her entitled to death benefits. The AP affirmed. APD 941145.

The surviving spouse shall present to the IC a certified copy of the marriage license or satisfactory evidence of a common-law marriage. 28 TAC Section 132.3(a). To prove a common-law marriage, the spouse must present evidence to establish that a declaration of marriage was executed under Texas Family Code Section 2.402, or all of the following three requirements:

1. The man and woman agreed to be married.
2. After the agreement they lived together in this state as husband and wife.
3. There they represented to others that they were married. Texas Family Code Section 2.401(a)(2).

If a proceeding to prove a marriage as provided by Section 2.401(a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. Texas Family Code Section 2.401(b). Whether a common-law marriage existed is a question of fact for the ALJ to resolve. APD 040801.

Common-Law Marriage Found

The deceased employee told the mother of his child that the claimant was the lady he wanted to spend the rest of his life with, and he considered the claimant his wife. Several documents, including receipts and an obituary notice reflecting the claimant as the employee’s wife, were admitted at the CCH. Also admitted were entries in medical records and a report from a rehabilitation nurse that referred to the claimant as the employee’s “live in girl friend.” The ALJ determined the claimant was the employee’s common-law spouse and entitled to benefits. The AP affirmed. APD 960574.

Common-Law Marriage Not Found

The claimant and the deceased employee began living together around the end of 1999 and agreed to be married in the future in or about December 2000. The claimant and the employee held themselves out as husband and wife to their family and friends. However, the claimant and the employee kept their relationship a secret from their employer, the IRS, creditors, and banks for various reasons. The ALJ determined the claimant and the employee did not hold themselves out as husband and wife to the public. Therefore, the ALJ did not find the existence of a common-law marriage. The AP affirmed. APD 041223.

Surviving Dependents

If no eligible spouse, eligible child, or eligible grandchild exists, death benefits will be paid to the deceased employee’s surviving parents, stepparents, siblings, or grandparents only if such surviving persons were dependent on the employee as of the date of the employee’s death. TLC Section 408.182(d); 28 TAC Section 132.6(a); APD 020114. Under 28 TAC Section 132.6(c), a parent, stepparent, sibling, or grandparent filing a death benefits claim as a dependent of the employee must present proof of the relationship to the employee either to the IC or with the claim for death benefits, and that subsection includes examples of evidence needed to prove that relationship. APD 960176. Additionally, the claimant must present proof of their dependency on the employee. Section 132.6(c); APD 020114.

Dependency

A dependent is a person who receives a regular or recurring economic benefit that substantially contributes to the individual’s welfare and livelihood if the individual is eligible for distribution of benefits under TLC Chapter 408. TLC Section 401.011(14).

To be considered a deceased employee’s dependent to collect death benefits, a claimant must meet all three of the following requirements:

1. The claimant must be eligible to receive death benefits.
2. The claimant has received a regular or recurring economic benefit from the employee.
3. The economic benefit the employee gave the claimant must have contributed substantially to the claimant’s welfare and livelihood. APD 93845.

An economic benefit is presumed to be regular or recurring if it flowed from the deceased employee to the claimant on an established basis in at least monthly intervals. An economic benefit is presumed to substantially contribute to the claimant’s welfare and livelihood if the benefit is equal to or greater than 20% of the claimant’s net resources. These presumptions may be overcome by credible evidence. The burden is on the claimant to prove that benefits that flowed less frequently than once per month were regular or recurring at the time of the employee’s death. Likewise, the burden is on the claimant to prove that benefits whose value was less than 20% of the person’s net resources contributed significantly to the claimant’s welfare and livelihood. 28 TAC Section 132.2(b),(c); APD 992698. The claimant must furnish sufficient information to DWC to identify the claimant’s net resources. 28 TAC Section 132.2(e); APD 971148. Under 28 TAC Section 132.2(e), a list of documentation that may be used as proof is included. If such documentation does not exist, the claimant may provide other documentation or testimony; lack of such documentation will go to the weight the ALJ will give the claimant’s other evidence and testimony. APD 031434. The economic benefits the employee gave to the claimant do not need to be purely in the form of money. Economic benefits may be given to the claimant in the form of goods and services. 28 TAC Section 132.2(f); APD 93822. Under 28 TAC Section 132.2(f), the value of these goods and services shall be the market value of the same or similar goods and services in the same vicinity.

Whether a claimant has established that they were a dependent of the employee is a question of fact for the ALJ to resolve. APD 032710. Whether a claimant has established that they received regular or recurring benefits at the time of the employee’s death and whether those benefits substantially contributed to the claimant’s welfare and livelihood are questions of fact for the ALJ to resolve. APD 971244.

Dependency Found

At the time of his death, the deceased employee was unmarried with no children. The employee sent money to the claimant, his mother, in Mexico; however, he did not send money on a monthly basis. Two individuals testified at the CCH that the employee was the claimant’s primary supporter. The employee provided the claimant with $9,100 on an intermittent basis during a two-year period. The claimant’s expenses were $200 per month. The ALJ determined the employee provided more than 20% of the claimant’s net resources, the benefit contributed substantially to the claimant’s welfare and livelihood, and the benefits were recurring. Therefore, the ALJ found that the claimant was a dependent of the employee. The AP affirmed. APD 971244.

Dependency Not Found

For about eight months prior to his death, the deceased employee lived with the claimant, his mother. The employee gave the claimant $50 per week, and he performed various services for her such as mowing the lawn, repairing her carpet and vehicle, and taking out the trash. The employee also rented movies for the claimant about three times per week. The total amount of cash and services the employee provided the claimant was about $6,000 to $6,100. The claimant’s and husband’s combined net income under 28 TAC Section 132.2 for that period of time was $50,000, and their expenses were $38,184.26. The claimant argued that the employee’s contributions contributed significantly to her welfare and livelihood if the contribution was viewed in relation to the amount of her discretionary income. The ALJ found that the purpose of the employee’s payment and assistance was to cover his living expenses rather than to significantly contribute to his mother’s welfare and livelihood for workers’ compensation eligibility, and ultimately determined the claimant did not meet her burden of proof to establish that she was a dependent within the meaning of the Act. The AP affirmed, stating the basis for comparison of dependency in 28 TAC Section 132.2 is the claimant’s net resources, not her discretionary income. APD 981139.

Note: APD 981139 was decided before TLC Section 408.182 was amended to allow for surviving eligible parents who are not dependents of the deceased employee to be paid death benefits in equal shares if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased. TLC Section 408.182(d-1). Under TLC Section 408.183(f-1), an eligible parent who is not a surviving dependent of the deceased employee is entitled to receive death benefits until the earlier of: (1) the date the eligible parent dies; or (2) the date of the expiration of 104 weeks of death benefit payments.