Death Benefits

The time requirement

Death benefits are payable if death results from the accident within one year of it, or if death follows continuous disability and results from the accident within five years.

That second route matters. A worker who is injured, remains continuously disabled, and dies three years later from the effects of that injury is covered.

Funeral expenses

The employer must pay actual funeral expenses up to $7,500, within 14 days after receiving the bill. This is in addition to the compensation described below.

What dependents receive

Compensation is a percentage of the deceased worker’s average weekly wage, paid in a statutory order of preference:

• Spouse, no children — 50% of average weekly wage, ceasing on the spouse’s death
• Spouse with children — 50%, plus an additional 16⅔% on account of the children
• Children, no spouse — 33⅓% for each child (also 33⅓% per child if the surviving spouse later dies)
• Parents — 25% each, during the continuance of dependency
• Brothers, sisters, grandchildren — 15% each

Three caps apply at once. Weekly payments are subject to the statewide maximum under § 440.12(2). Total compensation to all dependents cannot exceed 66⅔% of the average weekly wage. And the aggregate cannot exceed $150,000.

Where the family is survived by both a spouse and children, a Judge of Compensation Claims may direct payment in whatever manner appears just and proper and in the best interests of the parties — including directing the entire compensation to the children.

Remarriage

If the surviving spouse remarries, they receive a lump sum equal to 26 weeks of compensation at 50% of the average weekly wage, in place of further indemnity benefits. If the $150,000 limit has already been exceeded, the spouse instead receives a lump sum equal to the remaining available benefits.

A surviving spouse’s acceptance of a lump sum does not affect death benefits payable to other dependents.

The education benefit

This provision is frequently overlooked and can be worth a great deal.

A surviving spouse is entitled to payment of postsecondary student fees — up to 1,800 classroom hours at a career center, or up to 80 semester hours at a community college. The spouse of a deceased state employee receives a full fee waiver instead.

This is in addition to the other death benefits. It terminates seven years after the worker’s death, or when the total eligible compensation has been received. To qualify, the spouse must meet and maintain the institution’s regular admission requirements, be registered, and make satisfactory academic progress.

Who counts as a dependent child?

A child’s dependency ends at age 18, at age 22 if a full-time student in an accredited educational institution, or upon marriage — whichever comes first. The exception is a child physically or mentally incapacitated from earning a livelihood, whose dependency does not terminate on those grounds.

The relationship giving the right to compensation must have existed at the time of the accident. The only exception is for children born after the worker’s death.

How the caps redistribute benefits

Two mechanics are worth knowing because they affect what a family actually receives.

Where the 66⅔% ceiling prevents a person or class from receiving their full stated percentage, they receive the proportion that, added to everything payable to those with higher preference, brings the total to that ceiling. If the judge determines that splitting a small remainder across a class would provide no substantial benefit to anyone, the judge may direct it to whoever within the class would be most benefited.

And when one person’s compensation ends, the remaining recipients receive what they would have received had they been the only persons entitled at the time of death — so benefits can increase for those still receiving them.

The $150,000 limit

The aggregate cap is worth stating plainly. Regardless of the worker’s earnings, the number of dependents, or the circumstances of the death, total indemnity compensation under § 440.16 cannot exceed $150,000.

For a family that has lost its primary earner, that sum is limited. It is also why, when a party other than the employer contributed to the death — a negligent contractor, a defective machine, a driver — a third party claim outside the workers’ compensation system is often the more significant avenue. Workers’ compensation is the exclusive remedy against the employer, but not against everyone.

What this means for your family

Losing someone to a workplace injury is not primarily a legal problem, and the paperwork is the last thing anyone wants to think about. But three things are worth attending to early: the one year and five year timing requirements, whether a party other than the employer bears responsibility, and the education benefit, which surviving spouses very frequently never learn about.

Dependency, apportionment among family members, and the interaction of the caps are all determinations a Judge of Compensation Claims can be asked to make.