The following persons shall be conclusively presumed to be dependent for support upon a deceased employee: (1) A wife upon a husband with whom she is living or upon whom she is actually dependent at the time of his injury or death; (2) a husband upon a wife with whom he is living or upon whom he is actually dependent at the time of her injury or death; and (3) a child or children under the age of nineteen years, or over such age, if physically or mentally incapable of self-support, or any child nineteen years of age or over who is actually dependent, or any child between nineteen and twenty-five years of age who is enrolled as a full-time student in any accredited educational institution.

The term child shall include a posthumous child, a child legally adopted or for whom adoption proceedings are pending at the time of death, an actually dependent child in relation to whom the deceased employee stood in the place of a parent for at least one year prior to the time of death, an actually dependent stepchild, or a child born out of wedlock. Child shall not include a married child unless receiving substantially entire support from the employee. Grandchild shall mean a child, as above defined, of a child, as above defined, except that as to the latter child, the limitations as to age in the above definition do not apply.

Brother or sister shall mean a brother or sister under nineteen years of age, or nineteen years of age or over and physically or mentally incapable of self-support, or nineteen years of age or over and actually dependent. The terms brother and sister shall include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption but shall not include married brothers or married sisters unless receiving substantially entire support from the employee.

Parent shall mean a mother or father, a stepparent, a parent by adoption, a parent-in-law, and any person who for more than one year immediately prior to the death of the employee stood in the place of a parent to him or her, if actually dependent in each case.

Actually dependent shall mean dependent in fact upon the employee and shall refer only to a person who received more than half of his or her support from the employee and whose dependency is not the result of failure to make reasonable efforts to secure suitable employment. When used as a noun, the word dependent shall mean any person entitled to death benefits. No person shall be considered a dependent, unless he or she be a member of the family of the deceased employee, or bears to him or her the relation of widow, widower, lineal descendant, ancestor, brother, or sister. Questions as to who constitute dependents and the extent of their dependency shall initially be determined as of the date of the accident to the employee, and the death benefit shall be directly recoverable by and payable to the dependent or dependents entitled thereto or their legal guardians or trustees. No dependent of any injured employee shall be deemed, during the life of such employee, a party in interest to any proceeding by him or her for the enforcement or collection of any claim for compensation, nor as respects the compromise thereof by such employee.

Annotations

1. Wife

2. Children

3. Parents

4. Miscellaneous

1. Wife

Common-law wife was a dependent entitled to compensation. Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958).

Where wife was living apart from husband, and did not recognize his obligation to support her, recovery could not be had for death of husband. Bulman v. Lyman-Richey Sand & Gravel Corporation, 144 Neb. 342, 13 N.W.2d 403 (1944).

Wife, involuntarily confined in insane asylum at time of husband's death, was living with husband within provisions of Workmen's Compensation Act. Harrison v. Cargill Commission Co., 126 Neb. 185, 252 N.W. 899 (1934).

Where common-law marriage was invalid, claimant was not the widow and not entitled to compensation hereunder. Collins v. Hoag & Rollins, Inc., 122 Neb. 805, 241 N.W. 766 (1932).

2. Children

Subsection (3) of this section is in violation of the Equal Protection Clause of the U.S. Constitution and Neb. Const. art. I, sections 1 and 25, because it discriminates against illegitimate children by mandating a heavier burden of proof as opposed to a lesser burden of proof required of legitimate children. Findaya W. v. A-T.E.A.M. Co., 249 Neb. 838, 546 N.W.2d 61 (1996).

Determination of child's dependency is a question of fact unless child lived with parent at parent's death. James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977).

Child wholly dependent takes death benefits to the exclusion of children partially dependent. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

Where child of divorced parents did not live with and had not received support from father, child was not a dependent so as to be entitled to compensation upon death of employee father. Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287 N.W. 849 (1939).

Children seeking compensation as dependents of deceased must show actual dependency upon deceased. Palmer v. Hamer, 133 Neb. 362, 275 N.W. 322 (1937).

Contention of employer that children are entitled to compensation only from date widow remarried, was denied. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

A plain reading of this section shows that "an actually dependent stepchild" is a separate qualifying relationship from that between the deceased employee and "an actually dependent child in relation to whom the deceased employee stood in the place of a parent for at least one year prior to the time of death." State v. Soto, 11 Neb. App. 667, 659 N.W.2d 1 (2003).

3. Parents

Parents are not presumed to be dependents of minor children but may be found so to be on the facts of the individual case. McKelvey v. Barton Mills, Inc., 152 Neb. 120, 40 N.W.2d 407 (1949).

Payment by son to parents upon indebtedness do not make out a case of partial dependency upon son for support. Freburg v. Central Nebraska Public Power & Irr. Dist., 142 Neb. 868, 8 N.W.2d 209 (1943).

Where contributions are made by a son to support of needy parents over a reasonable period of time and with reasonable certainty as to amounts and when contributed, a finding of partial dependency of parents upon deceased employee is warranted. Kral v. Lincoln Steel Works, 136 Neb. 31, 284 N.W. 761 (1939).

Evidence was sufficient to establish nonresident mother's dependency. Venuto v. Carter Lake Club, 104 Neb. 782, 178 N.W. 760 (1920).

Dependency is not based solely upon a present legal obligation to support, and is not determined by the fact that a decedent had or had not actually contributed to the support of a parent before the date of the accident. Parson v. Murphy, 101 Neb. 542, 163 N.W. 847, L.R.A. 1918F 479 (1917).

4. Miscellaneous

Question of dependency is to be determined in accordance with the fact situation existing at time of injury. Lighthill v. McCurry, 175 Neb. 547, 122 N.W.2d 468 (1963).

Questions of dependency upon death of employee are to be determined in accordance with this section. Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724 (1962).

Dependency in fact is not created by contributions made by an employee for purposes other than support of the claimed dependent. Pieters v. Drake-Williams-Mount Co., 142 Neb. 315, 6 N.W.2d 69 (1942).

Where employee, in absence of fraud, signed release, it is binding on dependents after his death. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).

Dependents are not necessary parties in interest in compensation action brought in employee's lifetime. Employee's settlement, while in full possession of mental faculties, in absence of fraud, binds dependents. Bliss v. Woods, 120 Neb. 790, 235 N.W. 334 (1931).

Action to recover compensation for death may be by adult dependent, guardian or trustee of minor dependent, or by executor or administrator of deceased. Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).