Death benefits are payable to a legal beneficiary if an employee dies as the result of a compensable injury. Section 408.181(a); APD 000436. A legal beneficiary is a person who is entitled to receive a death benefit under the Act. Section 401.011(29).
A child is a son or daughter, an adopted child, or a stepchild who is a dependent of the IW. Section 401.011(7). The term "child" also includes a child that was conceived but unborn at the time of the DW'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 DW's death;
2. a full-time student attending an accredited educational institution under the age of 25; or
3. a dependent of the DW at the time of the DW's death. Section 408.182(f).
A DW's child is not eligible to receive death benefits if his or her parent-child relationship with the DW 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. Section 132.4(b) requires an individual claiming benefits as the DW's child to submit proof of relationship either to the IC or along with his or her claim for death benefits. An adult child claiming death benefits must additionally present proof under Section 132.2 to establish that at the time of the DW's death he or she was a dependent of the DW at the time of the DW's death. Section 132.4(g). A stepchild must prove the DW was married to the stepchild's parent, and that the stepchild was a dependent of the DW at the time of the DW's death. Section 132.4(d); APD 980224.
[Applies to claims based on a compensable injury that occurs on or after September 1, 2007]
[Cross reference: Entitlement to and Amount of Burial Benefits (D06)]
If there is no eligible spouse, no eligible child, no eligible grandchild, and no surviving dependents of the DW who are parents, siblings, or grandparents of the DW, death benefits shall be paid in equal shares to the surviving mother or father of the DW, including an adoptive parent or stepparent but not a parent whose parental rights have been terminated, who has received burial benefits under Section 408.186 and who has filed a claim for those benefits with the Division not later than one year from the date of the DW's death from the compensable injury. Sections 408.182(d-1), (d-2), (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. The commissioner may extend the time for filing a claim for death benefits only if the eligible parent submits proof satisfactory to the commissioner of a compelling reason for the delay. Section 408.182(d-2).
A DW's grandchild is entitled to receive death benefits if the grandchild was a dependent of the DW at the time of the DW's death unless the grandchild's own parent is eligible for benefits. Section 408.182(f)(2); Section 132.5(a); APD 931114. Section 132.5(b) requires an individual claiming benefits as the DW's grandchild to submit proof of 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. Section 132.5(b); APD 931114.
The DW's surviving spouse is entitled to receive death benefits unless
1. the surviving spouse abandoned the DW
2. without good cause
3. for more than one year immediately preceding the DW's death. Section 408.182(f)(3); 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). Whether or not a surviving spouse has abandoned the DW is a question of fact for the HO to resolve. APD 982874.
Good Cause for Spousal Abandonment, Beneficiary Entitled to Death Benefits.
Although the DW left his wife (claimant one) in 1994, the two were still married at the time of the DW's death from a compensable injury. After leaving claimant one but while they were still married, the DW lived with two other women. Claimant one and the DW had not lived in the same house for more than one year preceding the DW's death. The HO determined that claimant one had abandoned the DW, but found no good cause for the spousal abandonment. The AP affirmed the HO's determination as to spousal abandonment; however, the AP reversed the HO's good cause determination and therefore found good cause for the spousal abandonment. APD 021004.
No Spousal Abandonment.
The DW and his wife separated in September 1990. The DW moved into a separate residence; however, the DW left many of his belongings at the house he and his wife had shared, the DW continued to frequently stay at his wife's house, and the DW maintained sexual relations with his wife. The DW 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 DW and his wife reconciled when the DW's wife was injured in June 1993, and the DW moved back into the jointly shared house to care for his wife during her convalescence. The DW had filed for divorce in 1991, but did not pursue any action on it until the reconciliation ended later in 1993. The DW's mother had a different version of events. The HO, believing the DW's wife's testimony, determined that the wife had not abandoned the DW. 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. 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 Family Code Section 2.402, or all of the following three requirements:
- the man and woman agreed to be married;
- after the agreement they lived together in this state as husband and wife; and
- they represented to others that they were married. Tex. Fam. Code Ann. §2.401(a)(2) (Vernon 2006).
If a proceeding in which a marriage is to be proved as provided by §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. Tex. Fam. Code Ann. §2.401(b). Whether or not a common-law marriage existed is a question of fact for the HO to resolve. APD 040801.
The DW told the mother of his child that the claimant was the lady he wanted to spend the rest of his life with, and that he considered the claimant his wife. Several documents, including receipts and an obituary notice reflecting the claimant as the DW'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 DW's "live in girl friend." The HO determined the claimant was the DW's common-law spouse and entitled to benefits. The AP affirmed. APD 960574.
No Common-Law Marriage.
The claimant and DW began living together around the end of 1999 and agreed to be married in the future at or about December 2000. The claimant and DW held themselves out as husband and wife to their family and friends; however, the claimant and DW kept their relationship a secret from their employer, the IRS, creditors, and banks for various reasons. The HO determined the claimant and DW did not hold themselves out as husband and wife to the public, and therefore did not find the existence of a common-law marriage. The AP affirmed. APD 041223.
If no eligible spouse, eligible child, or eligible grandchild exists, death benefits will be paid to the DW's surviving parents, stepparents, siblings, or grandparents only if such surviving persons were dependent upon the DW as of the date of the DW's death. Section 408.182(d); Section 132.6(a); APD 020114. Section 132.6(b) requires a parent, stepparent, sibling, or grandparent filing a death benefits claim as a dependent of the DW to present proof of the relationship to the DW either to the IC or with the claim for death benefits. Section 132.6(b) lists evidence to prove relationship. APD 960176. Additionally, the claimant must present proof of his or her dependency on the DW. Section 132.6(b); APD 020114.
A dependent is a person who receives a regular or recurring economic benefit that substantially contributes to the individual's welfare and livelihood. Section 401.011(14).
To be considered a DW's dependent to collect death benefits, a claimant must meet all of the following three requirements:
- the claimant must be eligible to receive death benefits;
- the claimant has received a regular or recurring economic benefit from the DW; and
- the economic benefit the DW 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 DW 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. 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 DW'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. Section 132.2(b),(c); APD 992698. The claimant must furnish sufficient information to the Division to identify the claimant's net resources. Section 132.2(e); APD 971148. Section 132.2(e) lists documentation that may be used as proof. If such documentation does not exist, the claimant may provide other documentation or testimony; lack of such documentation will go to the weight the HO will give the claimant's other evidence and testimony. APD 031434. The economic benefits given to the claimant by the DW need not be purely monetary; economic benefits may be given to the claimant in the form of goods and services. Section 132.2(f); APD 93822.
Whether or not a claimant has established that he or she was a dependent of the DW is a question of fact for the HO to resolve. APD 032710. Whether or not a claimant has established that he or she received regular or recurring benefits at the time of the DW's death and whether those benefits substantially contributed to the claimant's welfare and livelihood is a question of fact for the HO to resolve. APD 971244.
At the time of his death on August 11, 1995, the DW was unmarried with no children. The DW 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 DW was the claimant's primary supporter. The DW provided the claimant with $9,100 on an intermittent basis from October 19, 1992 through December 22, 1994. The claimant's expenses were $200 per month. The HO determined the DW provided more than 20% of the claimant's net resources, the benefit contributed substantially to the claimant's welfare and livelihood, the benefits were recurring, and therefore found the claimant was a dependent of the DW. The AP affirmed. APD 971244.
Dependency Not Found.
From February 14, 1996 through the DW's death on October 12, 1996, the DW lived with the claimant, his mother. The DW gave the claimant $50 per week, and performed various services for her such as mowing the lawn, repairing her carpet and vehicle, and taking out the trash. The DW also rented movies for the claimant approximately three times per week. The total amount of cash and services the DW provided the claimant was approximately $6,000 to $6,100. The claimant's and husband's combined net income under Section 132.2 for that period of time was $50,000, and their expenses were $38,184.26. The claimant argued that the DW's contributions contributed significantly to her welfare and livelihood if the contribution was viewed in relation to the amount of her discretionary income. The HO found the DW's purpose of his 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 Section 132.2 is the claimant's net resources, not her discretionary income. APD 981139.