34-9-13. Persons presumed next of kin; apportionment of payments among partial and total dependents; termination of dependency.

As used in this Code section, the term:#

1. (1)

   “Child” includes dependent stepchildren, legally adopted children, posthumous children, and acknowledged children born out of wedlock but does not include married children; and#

2. (2)

   “Parent” includes stepparents and parents by adoption.#

The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee:#

1. (1)

   A wife or husband, except that if the wife and husband were living separately for a period of 90 days immediately prior to the accident which resulted in the death of the deceased employee the presumption of total dependence shall be rebuttable; and#

2. (2)

   A child of the employee if:#

   1. (A)

      The child is under 18 or enrolled full time in high school;#

   2. (B)

      The child is over 18 and is physically or mentally incapable of earning a livelihood; or#

   3. (C)

      The child is under the age of 22 and is a full-time student or the equivalent in good standing enrolled in a postsecondary institution of higher learning.#

If the deceased employee leaves a dependent surviving spouse, as above described, and no dependent child or children, the full compensation shall be paid to such spouse. If the deceased employee leaves a dependent surviving spouse, as above described, and also a dependent child or children, the full compensation shall be paid to such spouse for his or her use and that of such child or children; provided, however, that the board shall have the power in proper cases, in its discretion, to apportion the compensation; provided, further, that, if the dependent surviving spouse dies before payment is made in full, the balance remaining shall be paid to the person or persons wholly dependent, if any, share and share alike. If there is no person wholly dependent, payment shall be made to partial dependents.#

In all other cases, including where the deceased employee and a claimant dependent lived together continuously and openly in a relationship similar or akin to marriage, there shall be no presumption of dependency, and a claimant dependent’s dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident based upon evidence proving the deceased employee provided support of economic value to the claimant dependent, including, but not limited to, monetary support, sustenance, or housing. No consideration shall be made for any payment made exclusively for board and lodging, and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident. In such other cases, if there is more than one person wholly dependent, the death benefit shall be divided among them, and persons partially dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.#

For the purpose of this chapter, the dependency of a spouse upon a deceased employee shall terminate with remarriage or upon a determination by the board of cohabitation continuously and openly in a relationship similar or akin to marriage that includes support of economic value to the claimant dependent, including, but not limited to, monetary support, sustenance, or housing. No consideration shall be given to any payment made exclusively for board and lodging or to any payment for financial support for a period of less than three months. The dependency of a child, except a child physically or mentally incapable of earning a livelihood, shall terminate with the attainment of 18 years of age, except as provided in paragraph (2) of subsection (b) of this Code section. The dependency of a spouse and of a partial dependent shall terminate at age 65 or after payment of 400 weeks of benefits, whichever provides greater benefits.#