As used in the Workers' Compensation Act, unless the context otherwise requires, the following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of the Workers' Compensation Act:

A. a child under eighteen years of age or incapable of self-support and unmarried or under twenty-three years of age if enrolled as full-time student in any accredited educational institution;

B. the widow or widower, only if living with the deceased at the time of his death or legally entitled to be supported by him, including a divorced spouse entitled to alimony;

C. a parent or grandparent only if actually dependent, wholly or partially, upon the deceased; and

D. a grandchild, brother or sister only if under eighteen years of age or incapable of self-support, and wholly dependent upon the deceased.

The relation of dependency must exist at the time of the injury.

E. Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the injury, and their right to any death benefit shall cease upon the happening of any one of the following contigencies [contingencies]:

(1) upon the marriage of the widow or widower;

(2) upon a child, grandchild, brother or sister reaching the age of eighteen years, unless the child, grandchild, brother or sister at such time is physically or mentally incapacitated from earnings, or upon a dependent child, grandchild, brother or sister becoming self-supporting prior to attaining that age or if a child, grandchild, brother or sister over eighteen years of age who is enrolled as a full-time student in any accredited educational institution ceases to be so enrolled or reaches the age of twenty-three. A child, grandchild, brother or sister who originally qualified as a dependent by virtue of being less than eighteen years of age may, upon reaching age eighteen, continue to qualify if physically or mentally incapable of self-support, actually dependent or enrolled in an educational institution; or

(3) upon the death of any dependent.

History: 1953 Comp., § 59-10-12.10, enacted by Laws 1965, ch. 295, § 10; 1973, ch. 47, § 1; 1977, ch. 275, § 1; 1989, ch. 263, § 13.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For definition of child, see 52-1-18 NMSA 1978.

Legislative intent of this section and Section 52-1-46 NMSA 1978, is to give benefits only to those who are "eligible dependents" and not "heirs" as in the case of descent and distribution. Clauss v. Electronic City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518.

Relation of dependency simply means the character of the relationship that the family has to the deceased. Shahan v. Beasley Hot Shot Serv., Inc., 1978-NMCA-014, 91 N.M. 462, 575 P.2d 1347, cert. denied, 91 N.M. 491, 576 P.2d 297.

"Legally entitled to support" means entitled to support according to law. Kau v. Bennett, 1977-NMCA-121, 91 N.M. 162, 571 P.2d 819.

After several years of marriage, plaintiff's husband disappeared. They were not divorced; she never abandoned him or remarried during his absence. Months passed and she was notified of his death. These circumstances did not defeat her being legally entitled to be supported by her deceased husband, at the time of his death. Kau v. Bennett, 1977-NMCA-121, 91 N.M. 162, 571 P.2d 819.

Rights, remedies of worker are separate and distinct from dependent's; a dependent's claim is not derivative of the worker, but is given him by statute independent of the worker. Pedrazza v. Sid Fleming Contractor, 1980-NMSC-018, 94 N.M. 59, 607 P.2d 597.

Test for dependency is whether the deceased employee had actually contributed to claimant's support, and whether they relied upon such earnings in whole or in part for their livelihood. Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382 (decided under former law).

Dependency depends upon employee contributing and claimant relying on support. — "Dependency" under the act did not necessarily depend upon whether claimants could support themselves without earnings of the deceased, but rather it depended upon whether the deceased employee had actually contributed to claimants' support and whether they relied upon such earnings in whole or in part for their livelihood. Barney Cockburn & Sons v. Lane, 1941-NMSC-055, 45 N.M. 542, 119 P.2d 104 (decided under former law).

No reasonable expectation of support. — Where the deceased worker had not provided any support for the worker's children for the two year period after the worker was released from prison, the other parent and step-parent had provided all support for the children; and during a one day visit with the children, the worker promised to support the children, the children were not the worker's "dependants" under the Workers' Compensation Act because there was no reasonable probability that the worker's promise would be fulfilled. Kosmicki v. Aspen Drilling Co., 1966-NMSC-081, 76 N.M. 234, 414 P.2d 214.

While legal liability to support does not of itself prove dependency, the failure of a husband to support his wife and children for a considerable time prior to an accident does not of itself disprove their actual dependency. These are but circumstances to be taken into consideration in determining dependency. Actual dependency is a question of fact to be determined by all the facts and circumstances of each case. Houston v. Lovington Storage Co., 1965-NMSC-030, 75 N.M. 60, 400 P.2d 476.

Legal liability to support. — Legal liability to support did not of itself prove dependency. Merrill v. Penasco Lumber Co., 1922-NMSC-008, 27 N.M. 632, 204 P. 72 (decided under former law).

Heirship without defined dependency would not authorize compensation, but dependency without heirship in certain cases would do so. Rumley v. Middle Rio Grande Conservancy Dist., 1936-NMSC-023, 40 N.M. 183, 57 P.2d 283 (decided under former law).

Dependency under statute is a question of fact. It depends upon whether the deceased employee had actually contributed to claimant's support and whether claimant relied upon such contributions in whole or in part for his livelihood. Wilson v. Mason, 1967-NMCA-002, 78 N.M. 27, 426 P.2d 789.

Existence of actual partial dependency is question of fact to be proved by the evidence. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225 (decided under former law).

Actual partial dependency may exist even if the evidence shows that the claimant could have existed without the contributions of the deceased employee. It depends upon whether the deceased employee had actually contributed to claimant's support and whether he relied upon such earnings in whole or in part for his livelihood. Ferris v. Thomas Drilling Co., 1957-NMSC-029, 62 N.M. 283, 309 P.2d 225 (decided under former law).

Dependency and its extent are to be determined as of date of injury, and upon the happening of certain contingencies the right to any death benefits shall cease, i.e., upon the marriage of the widow or widower, upon the child reaching the age of 18 or becoming self-supporting or upon the death of any dependent. Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388 P.2d 382 (decided under former law).

"Relative nature of the work" test is a better test than "right to control" test in determining whether workmen's [workers'] compensation claimant was an employee or independent contractor. "Relative nature of work" test examines, first, the character of plaintiff's work or business, and second, the relationship of claimant's work to the purported employer's business. Therefore, claimant hired by insurance company as "storm trooper" or "catastrophe adjuster" was an independent contractor not eligible for workmen's [workers'] compensation funds, even though insurance company had right to fire him at anytime, where claimant received a fee rather than wages, paid his own personal expenses, set his own hours, used his own equipment, was not subject to deduction for withholding tax or social security, set his own methods of investigation and could refuse to take claims. Burton v. Crawford & Co., 1976-NMCA-070, 89 N.M. 436, 553 P.2d 716, cert. denied, 90 N.M. 7, 558 P.2d 619.

Presumption of marriage. — In proceeding under Workmen's [Workers'] Compensation Act by second wife to recover compensation for death of husband, presumption of validity arising from second marriage was a superior presumption to the presumption of the continuance of the former marriage relation, and, in absence of countervailing proof, was sufficient to overcome the latter. De Vigil v. Albuquerque & Cerrillos Coal Co., 1928-NMSC-049, 33 N.M. 479, 270 P. 791 (decided under former law).

Where the validity of a subsequent marriage is attacked on the basis of the continuing existence of a prior marriage at the time the second was contracted, a presumption of validity attaches to the last marriage. Schall v. Schall, 1982-NMCA-045, 97 N.M. 665, 642 P.2d 1124.

Impermissible discrimination does not exist where natural children and stepchildren share equally in workmen's [workers'] compensation benefits. Shahan v. Beasley Hot Shot Serv., Inc., 1978-NMCA-014, 91 N.M. 462, 575 P.2d 1347, cert. denied, 91 N.M. 491, 576 P.2d 297.

Wife denied benefits where separated and supported by another. — A first wife not claiming compensation benefits as a widow, but on the basis that she was legally entitled to be supported by the deceased, was denied benefits where she and the deceased had been separated and she began living with, and was supported by, another man for approximately 10 years. Lauderdale v. Hydro Conduit Corp., 1976-NMCA-095, 89 N.M. 579, 555 P.2d 700.

Widow denied because deceased not divorced from first wife. — A surviving widow was denied benefits when her husband was killed in a compensable accident because of clear and convincing evidence that the deceased and his first wife had never obtained a divorce. Lauderdale v. Hydro Conduit Corp., 1976-NMCA-095, 89 N.M. 579, 555 P.2d 700.

Failure to support before accident. — Failure of a husband to support his wife and children for a considerable time prior to the accident which caused his death did not of itself prove that they were not actual dependents. Merrill v. Penasco Lumber Co., 1922-NMSC-008, 27 N.M. 632, 204 P. 72, superseded by statute, Kau v. Bennett, 1977-NMCA-121, 91 N.M. 162, 571 P.2d 819.

Failure of husband to support wife was only one of several factors to be considered in determining dependency, and the existence of the marriage relation alone would not prove it. Husband's failure to support wife did not alone negative it. In re Tocci, 1941-NMSC-015, 45 N.M. 133, 112 P.2d 515 (decided under former law).

Widow's right to benefits ceases upon her remarriage under the Workmen's [Workers'] Compensation Act. Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909 (decided under former law).

Child of deceased workman [worker] under age of 18 years is actual dependent as a matter of law. Proof that the deceased workman [worker] left surviving a child under the age of 18 years sufficiently establishes its dependency; but the presumption of dependency is rebuttable. Snarr v. Carroll, 1958-NMSC-010, 63 N.M. 380, 320 P.2d 736 (decided under former law).

Dependency of older child. — After establishing that dependents were entitled to compensation, proof that deceased workman [worker] had a child under 18 was enough to establish dependency unless it appeared further that the child was self-supporting, but before a married child over 18 could be claimed as a dependent it would have to be shown that the child was incapable of self-support and was actually dependent upon the father. Hamilton v. Prestridge, 1943-NMSC-051, 47 N.M. 440, 144 P.2d 156 (decided under former law).

Subsection A does not require a showing of actual dependency in the case of children under the age of 23 and enrolled as full-time students. Garrison v. Safeway Stores, 1984-NMCA-116, 102 N.M. 179, 692 P.2d 1328, cert. denied, 102 N.M. 225, 693 P.2d 591.

Contributions of child to his own education fund does not establish parents' dependency because the contribution was not for the support of his parents. Wilson v. Mason, 1967-NMCA-002, 78 N.M. 27, 426 P.2d 789.

Dependent parents. — The father and mother of an unmarried son without children were dependents, where neither were employed and the son was their sole support. Gonzales v. Chino Copper Co., 1924-NMSC-005, 29 N.M. 228, 222 P. 903 (decided under former law).

Parents recover where dependency of child not shown. — Where there was a failure of proof of actual dependency of the child, partially dependent parents were entitled to recover. Snarr v. Carroll, 1958-NMSC-010, 63 N.M. 380, 320 P.2d 736 (decided under former law).

Benefits never asked for child. — Where the child of the workman [worker] had lived with its mother and stepfather since its birth, and had been supported exclusively by them, and they had never asked for death benefits for the child as a result of the death of its father, it follows that parents of the workman [worker] are entitled to compensation if actually dependent upon the workman [worker]. Snarr v. Carroll, 1958-NMSC-010, 63 N.M. 380, 320 P.2d 736 (decided under former law).

Parent earning more than costs not conclusive as to dependency. — That a parent, having no dependents, earned in excess of necessary cost of food, housing and clothes was not conclusive against claim of dependency. Dimas v. Albuquerque & Cerrillos Coal Co., 1931-NMSC-046, 35 N.M. 591, 3 P.2d 1068 (decided under former law).

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Workmen's Compensation," see 11 N.M.L. Rev. 235 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 51, 595, 607 to 609, 637, 682.

Children of one with whom deceased workman was living in illicit relations as dependents, 154 A.L.R. 698.

Posthumous children and children born after accident as dependents, 18 A.L.R.3d 900.

99 C.J.S. Workmen's Compensation §§ 19, 62, 130, 132 to 149; 100 C.J.S. Workmen's Compensation § 520.