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§ 6.01 Generally

6.02 Nature of Dependency

• November 1997. (Award) Proof of dependency is not required of a surviving spouse on the deceased employee in order to award death benefits to the surviving spouse. See Brinkmeyer v. City of Wichita, 223 Kan. 393, 573 P.2d 1044 (1978). Redditt v. McDonald's, Docket No. 211,963 [Remanded by Kansas Court of Appeals to review issue of mutual abandonment, Docket No. 80,396 (1999)].

6.03 Partial Dependency

6.04 Special Aspects of Claims of Survivors

Abandonment and/or Desertion of Surviving Spouse

• March 2000. (Award) The Board found that there was mutual abandonment under K.S.A. 1998 Supp. 44-508(c)(2), thereby denying death benefits to claimant. Over the course of time claimant not only accepted the reality of the marriage relationship with decedent, but also demonstrated a preference for the separation existence, including assumption of other relationships. The claimant and decedent had demonstrated a mutual preference for an end to their marriage relationship. Redditt v. McDonald's Restaurant, Docket No. 211,963.

• November 1997. (Award) Claimant, the surviving legal spouse of the deceased employee, is asking for death benefits. Respondent, however, argues claimant is precluded from benefits under K.S.A. 1995 Supp. 44-508(c)(2) because claimant willfully or voluntarily deserted or abandoned the deceased employee for more than six months prior to the date of the employee's death. The parties agreed that other than a phone call from the decedent to claimant in 1986, the claimant and decedent had absolutely no direct contact with each other after 1978 or 1979 up and until the decedent's death in 1995. Additionally, claimant received no financial support from the decedent from 1985 until his death in 1995. In determining whether an abandonment of the marital relationship occurred, the Appeals Board looked to the logic of Tisdale v. Wilson & Co., 141 Kan. 885, 43 P.2d 1064 (1935), which stated the question of whether an abandonment occurred is a question of law and defined abandonment as occurring when one leaves the marital relationship with the intention of not returning. By focussing on the intentions of the parties, the Appeals Board found that the decedent was the first to have the intent to abandon or leave the marital relationship as evidenced by his leaving the marital home and having extramarital affairs. The fact that claimant did not seek a reconciliation of the marriage was immaterial as decedent was found to be the first to abandon the marriage. See Tatum v. Tatum, 736 P.2d 506 (Okla. 1982). Therefore, finding a valid marriage existed at the time of decedent's death and finding the decedent was the first to abandon the marital relationship, the Appeals Board determined that claimant was entitled to death benefits and the provisions of K.S.A. 44-508(c)(2) did not bar claimant's recovery. Redditt v. McDonald's, Docket No. 211,963 [Remanded by Kansas Court of Appeals to review issue of mutual abandonment, Docket No. 80,396 (1999)].



• But See Dissent, which would find that claimant and decedent reconciled the marriage in 1979 and then mutually abandoned the marriage in that same year. The Dissenting Board Member finds the mutual abandonment of the marriage would bar claimant from receiving death benefits under K.S.A. 44-508(c)(2). See eg City of Aurora v. Claimant in Death of Corr., 689 P.2d 659 (Colo. Ct.App. 1984); Bass v. Mooresville Mill, 11 N.C. App. 631, 182 S.E.2d 246 (1971), cert den., 281 N.C. 755, 191 S.E.2d 353 (1972). Id.

6.05 Time Requirements