North Carolina General Statutes 97-40. Commutation and payment of compensation in absence of dependents; “next of kin” defined; commutation and distribution of compensation to partially dependent next of kin; payment in absence of both dependents a…
Terms Used In North Carolina General Statutes 97-40
- child: shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged child born out of wedlock dependent upon the deceased, but does not include married children unless wholly dependent upon him. See North Carolina General Statutes 97-2
- compensation: means the money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein. See North Carolina General Statutes 97-2
- Dependent: A person dependent for support upon another.
- employee: means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer, and as relating to those so employed by the State, the term "employee" shall include all officers and employees of the State, including such as are elected by the people, or by the General Assembly, or appointed by the Governor to serve on a per diem, part-time or fee basis, either with or without the confirmation of the Senate; as relating to municipal corporations and political subdivisions of the State, the term "employee" shall include all officers and employees thereof, including such as are elected by the people. See North Carolina General Statutes 97-2
- employer: means the State and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustee of any person. See North Carolina General Statutes 97-2
- Intestate: Dying without leaving a will.
- parent: includes stepparents and parents by adoption, parents-in-law, and any person who for more than three years prior to the death of the deceased employee stood in the place of a parent to him, if dependent on the injured employee. See North Carolina General Statutes 97-2
- person: means individual, partnership, association or corporation. See North Carolina General Statutes 97-2
- sister: include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. See North Carolina General Statutes 97-2
Subject to the provisions of N.C. Gen. Stat. § 97-38, if the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under N.C. Gen. Stat. § 97-38 to whole dependents shall be commuted to its present value and paid in a lump sum to the next of kin as herein defined. For purposes of this section and N.C. Gen. Stat. § 97-38, “next of kin” shall include only child, father, mother, brother or sister of the deceased employee, including adult children or adult brothers or adult sisters of the deceased, but excluding a parent who has willfully abandoned the care and maintenance of his or her child and who has not resumed its care and maintenance at least one year prior to the first occurring of the majority or death of the child and continued its care and maintenance until its death or majority. For all such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under this section, the order of priority among them shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate. In the event of exclusion of a parent based on abandonment, the claim for compensation benefits shall be treated as though the abandoning parent had predeceased the employee. For all such next of kin who were also partially dependent on the deceased employee but who exercise the election provided for partial dependents by N.C. Gen. Stat. § 97-38, the general law applicable to the distribution of the personal estate of persons dying intestate shall not apply and such person or persons upon the exercise of such election, shall be entitled, share and share alike, to the compensation provided in N.C. Gen. Stat. § 97-38 for whole dependents commuted to its present value and paid in a lump sum.
If the deceased employee leaves neither whole dependents, partial dependents, nor next of kin as hereinabove defined, then no compensation shall be due or payable on account of the death of the deceased employee, except that the employer shall pay or cause to be paid the burial expenses of the deceased employee not exceeding ten thousand dollars ($10,000) to the person or persons entitled thereto. (1929, c. 120, s. 40; 1931, c. 274, s. 5; c. 319; 1945, c. 766; 1953, c. 53, s. 2; c. 1135, s. 2; 1963, c. 604, s. 4; 1965, c. 419; 1967, c. 84, s. 5; 1971, c. 1179; 1981, c. 379; 1987, c. 729, s. 10; 2001-232, s. 3.1; 2011-287, s. 15.)