The deceased, a foreign national, married his first wife and with her had four children, who are now adults.  He then moved to the United States and married his second wife, and with her had two children.  Upon his death, Employer initiated death benefits to the first wife.  When Employer discovered the second wife and two minor children, Employer divided the death benefits among the first wife, the second wife, and the two minor children.

The administrative law judge (“ALJ”) found that only the second wife and her children were entitled to benefits, and that Employer was not entitled to credit for amounts already paid to the first wife.  Employer appealed this decision to the Benefits Review Board (“BRB”).

The BRB affirmed the ALJ’s decision that only the second wife and children were entitled to benefits.  Although the deceased was legally married to his first wife, a legal marriage alone is insufficient for purposes of death benefits under Section 9(b) of the Longshore and Harbor Workers’ Compensation Act (“the Act”).  Under the Act, a wife entitled to death benefits must be “living with or dependent for support upon” the decedent “or living apart for justifiable cause or by reason of [the decedent’s] desertion at the time of death.”  Here, although the decedent was legally married to his first wife, the BRB found that there was insufficient evidence that she met the criteria of a widow entitled to death benefits.  No evidence existed that the decedent was living with the first wife or that the decedent supported the first wife financially.  There was also no evidence establishing any basis for their living apart or desertion.  As such, the BRB held that the second wife, who was living with the decedent at the time of his death, was the only wife entitled to benefits as decedent’s widow.  Without a conjugal nexus, death benefits are not owed to a surviving spouse.

Omar v. Al Masar Transp. Co., No. 11-0809, 2012 WL 2520756 (Ben. Rev. Bd. 2012) (published).