Subject to the provisions of G.S. 97-38, if the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under G.S. 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 G.S. 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 G.S. 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 G.S. 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.)
Notes of Decisions
In Re the Est. of Lunsford, 610 S.E.2d 366 (N.C. 2005).
· cites it 15× “Davis construed N.C.G.S. § 97-40, a statute which prohibits the distribution of workers’ compensation death benefits to “a parent who has willfully abandoned the care and maintenance of his or her child.”
Davis v. Trus Joist MacMillan, 558 S.E.2d 210 (N.C. Ct. App. 2002).
· cites it 23× “Jose Troncony (Troncony) appeals an opinion and award of the Full Commission of the North Carolina Industrial Commission (the Full Commission) filed 17 October 2000 denying him any workers’ compensation death benefits as the father of Leana Patricia Troncony (Patricia),…”
Stevenson v. City of Durham, 188 S.E.2d 281 (N.C. 1972).
· cites it 14× “The question presented by this appeal is whether “brothers” and “sisters” who are eighteen years of age, or older, and married are “next of kin” as defined in G.S. 97-40. At the time of O’Neal Daniels’ injury and death, G.”
Rhodes v. Price Bros., Inc., 622 S.E.2d 710 (N.C. Ct. App. 2005).
· cites it 6× “N.C. Gen. Stat. § 97-40 (2004). “[T]he analysis of whether a parent has ‘willfully abandoned the care and maintenance’ of a child requires the consideration of numerous factors: the parent’s display of love, care, and affection for the child and the parent’s financial support…”
Allen v. Piedmont Transp. Servs., Inc., 447 S.E.2d 835 (N.C. Ct. App. 1994).
· cites it 10× “” N.C. Gen. Stat. § 97-40 . The order of priority among such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under § 97-40 is “governed by the general law applicable to the distribution of the personal estate of persons dying…”
In Re the Est. of Lunsford, 585 S.E.2d 245 (N.C. Ct. App. 2003).
· cites it 4× “2d 210, 214 (2002) (parent must prove he has resumed both care and maintenance of his child to obtain workers' compensation death benefits under N.C. Gen.Stat. § 97-40). The duty of care requires a presence in a child's life: to show love and affection, as well as providing…”
Kelly v. Duke Univ., 661 S.E.2d 745 (N.C. Ct. App. 2008).
· cites it 2× “§ 97-38 and funeral expenses pursuant to N.C. Gen. Stat. § 97-40 (2007). In addition, the Commission concluded that pursuant to N.”
Horney v. Meredith Swimming Pool Co., 148 S.E.2d 554 (N.C. 1966).
· cites it 2× “G.S. 97-40, at the time of Horney’s injury and death, provided: “If the deceased employee leaves neither whole nor partial dependents, no compensation shall be due or payable on account of the death of the deceased employee.”
Strickland v. Carolina Classics Catfish, Inc., 492 S.E.2d 362 (N.C. Ct. App. 1997).
· cites it 6× “■§ 97-40 (Supp. 1996). The Act further provides: “[I]n any workers’ compensation case in which an order issued either granting or denying an award to the employee and where there is an appeal resulting in an ultimate award to the employee, the insurance carrier or employer shall…”
McGill v. Bison Fast Freight, Inc., 96 S.E.2d 438 (N.C. 1957).
“In view of the foregoing, the presence of the administratrix as a claimant is surplusage; and in further proceedings herein the dependent minor claimant should appear by general guardian.”
Locust v. Pitt Cnty. Mem'l Hosp., Inc., 591 S.E.2d 543 (N.C. 2004).
“28-173, provided that the proceeds of an action for wrongful death “shall be disposed of as provided in the Intestate Succession Act,” and when it provided in G.S. 97-40 that the order of priority among claimants to death benefits payable under the Workmen’s Compensation Act…”
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