N.M. Stat. § 52-1-46 (2026)

Subject to the limitation of compensation payable under Subsection G of this
section, if an accidental injury sustained by a worker proximately results in the worker's
death within the period of two years following the worker's accidental injury,
compensation shall be paid in the amount and to the persons entitled thereto as follows:

   A. if there are no eligible dependents, except as provided in Subsection C of
Section 52-1-10 NMSA 1978 of the Workers' Compensation Act, the compensation shall
be limited to the funeral expenses, not to exceed seven thousand five hundred dollars
($7,500), and the expenses provided for medical and hospital services for the
deceased, together with all other sums that the deceased should have been paid for
compensation benefits up to the time of the worker's death;

    B. if there are eligible dependents at the time of the worker's death, payment shall
consist of a sum not to exceed seven thousand five hundred dollars ($7,500) for funeral
expenses and expenses provided for medical and hospital services for the deceased,
together with such other sums as the deceased should have been paid for
compensation benefits up to the time of the worker's death and compensation benefits
to the eligible dependents as hereinafter specified, subject to the limitations on
maximum periods of recovery provided in Sections 52-1-41 through 52-1-43 and 52-1-
47 NMSA 1978;

   C. if there are eligible dependents entitled thereto, compensation shall be paid to
the dependents or to the person authorized by the director or appointed by the court to
receive the same for the benefit of the dependents in such portions and amounts, to be
computed and distributed as follows:

       (1)    if there is no widow or widower entitled to compensation, sixty-six and two-
thirds percent of the average weekly wage of the deceased to the child or children;
      (2)   if there are no children, sixty-six and two-thirds percent of the average
weekly wage of the deceased to the widow or widower, until remarriage; or

       (3)    if there is a widow or widower and children:

           (a) if all the children are living with the widow or widower, forty-five percent of
the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and
52-1-47 NMSA 1978 to the widow or widower and fifty-five percent divided equally to
the children; or

        (b) if no child is living with a widow or widower, forty percent of the weekly
compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47
NMSA 1978 to the widow or widower and sixty percent divided equally to the children;
and

      (4)    two years' compensation benefits in one lump sum shall be payable to a
widow or widower upon remarriage; however, the total benefits shall not exceed the
maximum compensation benefit as provided in Subsection B of this section;

     D. if there is neither widow, widower nor children, compensation may be paid to the
father and mother or the survivor of them, if dependent to any extent upon the worker
for support at the time of the worker's death, twenty-five percent of the average weekly
wage of the deceased, and in no event shall the maximum compensation to such
dependents exceed the amounts contributed by the deceased worker for their care;
provided that if the father and mother, or the survivor of them, was totally dependent
upon such worker for support at the time of the worker's death, they shall be entitled to
fifty percent of the average weekly wage of the deceased;

    E. if there is neither widow, widower nor children nor dependent parent, then to the
brothers and sisters and grandchildren if actually dependent to any extent upon the
deceased worker for support at the time of the worker's death, thirty-five percent of the
average weekly wage of the deceased worker with fifteen percent additional for brothers
and sisters and grandchildren in excess of two, with a maximum of sixty-six and two-
thirds percent of the average weekly wage of the deceased, and in no event shall the
maximum compensation to partial dependents exceed the respective amounts
contributed by the deceased worker for their care;

   F. in the event of the death or remarriage of the widow or widower entitled to
compensation benefits as provided in this section, the surviving children shall then be
entitled to compensation benefits computed and paid as provided in Paragraph (1) of
Subsection C of this section for the remainder of the compensable period. In the event
compensation benefits payable to children as provided in this section are terminated as
provided in Subsection E of Section 52-1-17 NMSA 1978, a surviving widow or widower
shall then be entitled to compensation benefits computed and paid as provided in
Paragraphs (2) and (4) of Subsection C of this section for the remainder of the
compensable period; and
   G. no compensation benefits payable by reason of a worker's death shall exceed
the maximum weekly compensation benefits as provided in Sections 52-1-41 through
52-1-43 and 52-1-47 NMSA 1978, and no dependent or any class thereof, other than a
widow, widower or children, shall in any event be paid total benefits in excess of seven
thousand five hundred dollars ($7,500) exclusive of funeral expenses and the expenses
provided for medical and hospital services for the deceased paid for by the employer.

History: 1953 Comp., § 59-10-18.7, enacted by Laws 1959, ch. 67, § 25; 1963, ch. 269,
§ 5; 1965, ch. 252, § 3; 1967, ch. 151, § 5; 1969, ch. 173, § 3; 1972, ch. 65, § 2; 1973,
ch. 240, § 7; 1975, ch. 284, § 11; 1977, ch. 275, § 2; 1986, ch. 22, § 15; 1987, ch. 235,
§ 19; 1999, ch. 172, § 2; 2013, ch. 134, § 3.

                                     ANNOTATIONS

Cross references. — For dependents, see 52-1-17 NMSA 1978.

For child, see 52-1-18 NMSA 1978.

The 2013 amendment, effective July 1, 2013, provided for payment of compensation if
there is a widow or widower and children; and in Subparagraph C, deleted former
Paragraph (3), which provided for payment of compensation to widows and widowers if
there are or are not children living with the widow or widower; and added Paragraph (3).

The 1999 amendment, effective June 18, 1999, substituted "seven thousand five
hundred dollars ($7,500)" for "three thousand dollars ($3,000)" in Subsections A and B.

Greater benefits for dependents not violative of equal protection. — This section
setting greater benefits for dependent survivors of a deceased workman (worker) than
for nondependent survivors is well within legislative prerogatives and is not violative of
equal protection. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294,
706 P.2d 158.

This section and Section 52-1-31 NMSA 1978 must be read and applied together
and do not provide two separate and unrelated methods by which dependents may
obtain benefits on the basis of the death of a worker. Shaw v. Warner, 1984-NMCA-010,
101 N.M. 22, 677 P.2d 635, cert. denied, 101 N.M. 11, 677 P.2d 624.

Claim for increased disability benefits not abated by employee's death. — Where
employee had sought an increase in disability benefits prior to death and was appealing
an adverse summary judgment at time of his death, claim for increased compensation
did not abate by reason of his death since Subsections A and B authorize payment,
after death, of benefits that should have been paid prior to death. Holliday v. Talk of
Town, Inc., 1985-NMCA-024, 102 N.M. 540, 697 P.2d 959.

Separate classes of dependents not unconstitutional. — Establishment of surviving
parents as a separate class for purposes of awarding death benefits, apart from that of
surviving spouses and dependent children, is not an unconstitutional distinction, nor
violative of equal protection of the laws. Gallegos v. Homestake Mining Co., 1982-
NMCA-052, 97 N.M. 717, 643 P.2d 281.

Surviving spouse and children coequal dependents. — Under the statutory scheme
adopted in this section for distribution of death benefits to worker's survivors, the
surviving spouse and children of the deceased worker are of the same coequal class of
dependents eligible for death benefits. Employers Nat'l Ins. Co. v. Winters, 1984-NMCA-
038, 101 N.M. 315, 681 P.2d 741.

Stepchildren and natural children treated equally. — Under this section, for
purposes of awarding survivor's benefits, dependent minor stepchildren, whether
adopted or not, and natural children are treated equally, and each is entitled to share
alike. Schall v. Schall, 1982-NMCA-045, 97 N.M. 665, 642 P.2d 1124.

Legislative intent of 52-1-17 NMSA 1978 and this section 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.

Intent of legislature was to create at least two and possibly three classes: the
class of dependent widow, widower or children, Subsection C; the class of dependent
father and mother or the survivor thereof, Subsection D; and possibly the class of
dependent brother and sister, Subsection E. Employers Mut. Liab. Ins. Co. v. Jarde,
1963-NMSC-215, 73 N.M. 371, 388 P.2d 382.

Legislature's policy favoring periodic over lump sum payments in Subsection A of
Section 52-5-12 NMSA 1978 also applies to compensation due a deceased worker's
dependents under this section. Paradiso v. Tipps Equip., 2004-NMCA-009, 134 N.M.
814, 82 P.3d 985, cert. denied, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802.

Legislative purpose in changing law. — The court does not see in this section any
legislative purpose to make any fundamental or basic changes in the law as it existed,
but rather an effort to make it more readable and understandable. This being true, it
becomes clear that the provision for payment to a dependent mother in D is included
within the language of C, providing for payment to several dependents in various
classifications following, now numbered (1) to (6) and D, E and F, but previously being
numbered (1) to (7). Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M.
371, 388 P.2d 382.

Beginning of two-year period. — The two-year time limit for bringing claims for death
benefits begins to accrue from the date the worker knew or should have known that he
suffered a compensable injury, rather than from the date of the accident. Gambrel v.
Marriott Hotel, 1991-NMCA-100, 112 N.M. 668, 818 P.2d 869.

Claim for death benefits was timely. — Where worker sought and obtained an award
of workers' compensation disability benefits after she contracted allergic
bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold
while employed with the Albuquerque public schools, and where worker died from
pneumonia and chronic pneumonitis which was likely caused by the ABPA, the district
court did not err in determining that claimant's claim for death benefits was within the
two-year limitations period, because although worker's respiratory problems began
shortly after her exposure to aspergillus mold in August of 2011 and died in November
of 2014, the limitation period does not begin to run until the disability occurs and thereby
entitles the worker to benefits under the act, even if the worker is aware that an injury
was suffered earlier. Petitioner filed a claim for death benefits in January of 2015, less
than two years after worker knew or should have known that she suffered a
compensable injury. Lewis v. Albuquerque Public Schools, 2019-NMSC-022, aff'g in
part and rev'g in part 2018-NMCA-049, 424 P.3d 643.

Expert testimony regarding the cause of death. — In a contested death benefits
workers' compensation case, the parties can agree upon an independent medical
examination (IME) examiner to perform an IME, the purpose of which is to determine
the causal connection, if any, between the worker's injury and the worker's death, and
the workers' compensation judge has the authority to order an IME for this purpose on
the motion of a party or on its own motion. Lewis v. Albuquerque Public Schools, 2019-
NMSC-022, aff'g in part and rev'g in part 2018-NMCA-049, 424 P.3d 643.

Two-year limitations period. — Where worker sought and obtained an award of
workers’ compensation disability benefits after she contracted allergic
bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold
while employed with the Albuquerque public schools, and where worker died from
pneumonia and chronic pneumonitis which was likely caused by the ABPA, the district
court did not err in determining that claimant’s claim for death benefits was within the
two-year limitations period, because worker knew or should have known that she had
an injury and was entitled to compensation for that injury on April 1, 2013, which was
within two years of worker’s death on November 12, 2014. Lewis v. Albuquerque Pub.
Schs., 2018-NMCA-049, cert. granted.

Testimony about the cause of death. — Where worker sought and obtained an award
of workers’ compensation disability benefits after she contracted allergic
bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold
while employed with the Albuquerque public schools, and where claimant, worker’s
widower, sought workers’ compensation death benefits following worker’s death, the
workers’ compensation judge (WCJ) erred in determining that 52-1-51(C) NMSA 1978
barred admission and consideration of cancer treatment records and the testimony of
worker’s oncologist in determining the cause of worker’s death, because 52-1-51(C)
NMSA 1978 does not apply to a WCJ’s cause of death determination pursuant to 52-1-
46 NMSA 1978, and therefore does not limit expert testimony regarding the
circumstances and cause of a worker’s death in connection with a claim for death
benefits. Lewis v. Albuquerque Pub. Schs., 2018-NMCA-049, cert. granted.
Amount of death benefits. — Where worker sought and obtained an award of workers’
compensation disability benefits after she contracted allergic bronchopulmonary
aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with
the Albuquerque public schools, and where claimant, worker’s widower, sought workers’
compensation death benefits following worker’s death, the workers’ compensation judge
(WCJ) erred in determining that the amount of death benefits should equal the amount
of worker’s permanent partial disability benefits. Section 52-1-46(C)(2) NMSA 1978
provides without qualification for a weekly death benefit to a widow or widower in the
amount of sixty-six and two-thirds percent of the worker’s average weekly wage. Lewis
v. Albuquerque Pub. Schs., 2018-NMCA-049, cert. granted.

Act contains no exception tolling limitation by reason of minority or incompetency.
The court, on numerous occasions, has held that the limitation for the filing of a
workmen's (workers') compensation claim is jurisdictional and that failure to file the
same within the statutory period requires a dismissal of the action. Selgado v. N.M.
State Hwy. Dep't, 1960-NMSC-010, 66 N.M. 369, 348 P.2d 487.

Dependent compensation only where workman (worker) entitled. — Considering
the Workmen's (Workers') Compensation Act as a whole, it was not intended that there
should be compensation to dependents who were not able to make out a case which
would have entitled the workman (worker) to compensation if death had not ensued.
The basis of every claim, whether by the workman (worker) or by his dependent, is an
injury for which public policy, as declared by the section casts responsibility upon the
employer or upon the industry. Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M.
217, 257 P.2d 909 (decided under former law).

Partial dependency where employee contributed to support and claimant relied
thereon. — 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).

Existence of actual partial dependency is a 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).

Whether partial dependency under Subsection D exists is a question of fact to be
decided in each case and to be proven under the evidence. Gallegos v. Homestake
Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

Dependency, under the Act, is a question of fact to be decided in each case upon
the particular facts of that case. Lopez v. Schultz & Lindsay Constr. Co., 1968-NMCA-
064, 79 N.M. 485, 444 P.2d 996, cert. denied, 79 N.M. 448, 444 P.2d 775.
Determination of dependency turns upon whether the deceased workman (worker) had
actually contributed to his parents' support and whether his parents relied upon such
contributions in whole or in part for their livelihood. Gallegos v. Homestake Mining Co.,
1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

Payments to several dependents in portions and amounts. — It is clear from the
language used in this section that payments are to be made to several dependents in
"portions and amounts" as should be determined by the court, with consideration being
given to "the necessities of the case and the best interests of the dependents and of the
public." Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388
P.2d 382.

Payments to dependent minor daughter do not foreclose right of dependent
mother, so long as the total payments do not exceed the maximum provided in the
section. Employers Mut. Liab. Ins. Co. v. Jarde, 1963-NMSC-215, 73 N.M. 371, 388
P.2d 382.

Evidence to support finding of not dependent. — If there is substantial support in the
evidence for the finding that plaintiffs were not dependent to any extent upon the
decedent within the meaning, purpose and intent of the Workmen's (Workers')
Compensation Act, then plaintiffs must fail on appeal. Lopez v. Schultz & Lindsay
Constr. Co., 1968-NMCA-064, 79 N.M. 485, 444 P.2d 996, cert. denied, 79 N.M. 448,
444 P.2d 775.

Where employee died from causes other than injury, the dependents of a deceased
workman (worker) may not recover that portion of a compensation award which was
payable after the death of the workman (worker). Cranford v. Farnsworth & Chambers
Co., 261 F.2d 8 (10th Cir. 1958) (decided under former law).

Sections provide for continuing jurisdiction over award. — Both this section and
Section 52-1-56 NMSA 1978 provide for a continuing jurisdiction of the court over a
compensation award. Clauss v. Elec. City, 1979-NMCA-066, 93 N.M. 75, 596 P.2d 518.

Subsection F provision for continued payment of compensation benefits to
surviving eligible children of a deceased workman (worker) is subject to the entitlement
of a surviving spouse on remarriage to the payment of lump sum benefits provided in
Subdivision C(4). Employers Nat'l Ins. Co. v. Winters, 1984-NMCA-038, 101 N.M. 315,
681 P.2d 741.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation
§§ 65, 251, 252, 591, 707.

Competency of witness in wrongful death action as affected by dead man statute, 77
A.L.R.2d 680.
When time period commences as to claim under workers' compensation or occupational
diseases act for death of worker due to contraction of disease, 100 A.L.R.5th 567.

99 C.J.S. Workmen's Compensation §§ 321 to 329.