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Other Death Benefits Issues (D00)

Duration of Death Benefits.

Child. 

The duration of death benefits a deceased employee's child is entitled to receive is based on the child's reason for being eligible for death benefits.

Dependent.

A child who is eligible to receive death benefits because he or she was a dependent of the deceased employee on the date of the deceased employee's death is entitled to receive death benefits until the earliest of the following:

  1. the date that the child dies;
  2. if the child has a physical or mental disability making the child a dependent of the deceased employee, the date the child no longer has the disability; or
  3. because of a reason other than a physical or mental disability, the date on which 364 weeks of death benefit payments expire. TLC Section 408.183(e); 28 TAC Section 132.8(d),(f); APD 941246

Disability.

A child "who is eligible to receive death benefits because the child had a physical or mental handicap and was dependent on the employee on the date of the deceased employee's death due to the handicap is entitled to receive death benefits until the earlier of the following:

  1. the date the child is no longer handicapped; or
  2. the date the child dies.” 28 TAC Section 132.8(d); see also TLC Section 408.183(e)

Enrolled in Educational Institution.

A child who is eligible to receive death benefits as a minor and who, at the age of 18, enrolls as a full-time student in an accredited educational institution or who was already enrolled as a full-time student in such an institution on the date of the employee’s death is entitled to receive death benefits until the earliest of the following three situations:

  1. the date the child ceases to be a full-time student in an accredited educational institution for two consecutive semesters not counting summers;
  2. the date the child turns 25; or
  3. the date the child dies. TLC Section 408.183(d); 28 TAC Section 132.8(b); APD 011542-s

Minor.

A child, including a deceased employee’s minor dependent stepchild (see TPCIGA v. Morrison, 212 S.W.3d 349 (Tex. App.-Austin 2006, pet. denied)), who is eligible to receive death benefits because the child was a minor on the date of the employee’s death is entitled to receive death benefits until the child turns 18. However, if the child is enrolled as a full-time student at an accredited educational institution the child is eligible for benefits as described above. TLC Section 408.183(c),(d); 28 TAC Section 132.8(a). Please note that Morrison overrules APD 033232-s.

Eligible Parent (Not Dependent on Deceased Employee).

[Applies to claims based on a compensable injury that occurs on or after September 1, 2007]

[Cross reference: Identity of Legal Beneficiaries (D01)]

An eligible parent who is not a surviving dependent of the deceased employee is entitled to receive death benefits until the earlier of the following:

  1. the date the person dies; or
  2. the date of the expiration of 104 weeks of death benefit payments. TLC Section 408.183(f-1).

Grandchild. 

An eligible grandchild who was a minor on the date of the deceased employee's death is entitled to receive death benefits until the earlier of the following:

  1. the date the eligible grandchild turns 18; or
  2. the date the eligible grandchild dies. TLC Section 408.183(f); 28 TAC Section 132.9(a).

An eligible grandchild who was not a minor on the date of the employee's death is entitled to receive death benefits until the earlier of the date the eligible grandchild dies or the expiration of 364 weeks of death benefit payments. TLC Section 408.183(f); 28 TAC Section 132.9(b).

Spouse. 

An eligible spouse is entitled to receive death benefits for the remainder of his or her life unless the spouse has remarried. If the spouse has remarried, he or she will be entitled to a lump sum equivalent to 104 weeks of death benefits. TLC Section 408.183(b). This lump sum amount is calculated by multiplying the amount of death benefits the spouse received the week prior to the remarriage by 104. Any benefits that the IC paid to the spouse after the remarriage will be deducted from the 104-week amount. 28 TAC Section 132.7(d).

NOTE: Notwithstanding TLC Section 408.183(b), above, an eligible spouse who remarries on or after September 1, 2017, is eligible for death benefits for life if the employee was a first responder, as defined under TLC Section 504.055, who died in the course and scope of employment or while providing services as a volunteer.  TLC Section 408.183(b-1). This subsection applies regardless of the date on which the death of the first responder occurred.

Surviving Dependents. 

In the event that there is no eligible spouse, child, or grandchild of the deceased employee, death benefits shall be paid to surviving dependents of the employee who are parents, stepparents, siblings, or grandparents of the employee. TLC Section 408.182(d).

Those dependents are eligible to receive death benefits until the earlier of:

  1. the date of the eligible dependent's death; or
  2. the expiration of 364 weeks of death benefit payments. TLC Section 408.183(g); 28 TAC Section 132.9(c).

Settlement.

The parties stipulated that the IE sustained a compensable injury in 1997. The legal representatives of the IC and the IE executed a Benefit Dispute Settlement (DWC-25), the claimant beneficiary (the IE's wife) signed the DWC-25 on behalf of the IE under the authority of a Statutory Durable Power of Attorney, and DWC approved the DWC-25 in 2004. The DWC-25 stated in part that the IE and his beneficiaries are not entitled to any additional income benefits including LIBs and death benefits. The IE died in 2006. The AP held that the approval of the DWC-25 does not preclude the claimant beneficiary from pursuing death benefits and burial benefits. The settlement by the decedent does not bar the claim of the decedent's legal beneficiaries. Swain v. Standard Acc. Ins. Co., 81 S.W.2d 258, affirmed by the Texas Supreme Court in 109 S.W.2d 750. The courts have recognized that the legal beneficiaries have an independent cause of action separate from the IE and have stated that the IE can take no action that would negatively affect the rights of his or her beneficiaries to collect benefits by reason of his or her death. Maryland Cas. Co. v. Stevens, 55 S.W.2d 149 (Tex. Civ. App.-Eastland 1932, writ ref'd) and American Motorists Ins. Co. v. Villagomez, 398 S.W.2d 742 (Tex. 1966). APD 071277-s.

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