The TAC may pay two types of benefits to a surviving partner of a person who dies (the deceased) as a result of a transport accident:
- A lump sum benefit (based on the age of the deceased at the time of death)
- A weekly benefit (where the deceased was an earner based on his/her loss of earning capacity).
Transport Accident Act 1986 reference: s.3 'surviving partner', s.57 and s.58
See the Indexation of benefits schedule for the current amounts of these benefits.
In this policy, the surviving partner of a person who dies as a result of a transport accident means someone who irrespective of their gender or marital status was a dependent partner of the deceased.
A dependent partner in relation to a person means the person's partner, if the partner would but for the injury or death of that person -
(a) be wholly, mainly or in part dependent on that person for economic support; or
(b) be wholly dependant on the person for the care of the children of the partner or of that person.
A domestic partner is defined as a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender).
Refer to the Domestic Partners policy for full definitions of a spouse, partner and domestic partner.
What information does the TAC require to assess eligibility and calculate benefits?
In order to establish a surviving partner's eligibility for benefits, the TAC may request the completion of a Dependants Statutory Declaration and the following:
- Evidence a genuine domestic relationship between the two people exists, for example:
- a marriage certificate, or
- a certificate demonstrating the relationship is registered
- statements (i.e. statutory declarations) by parents, family members, relatives, and friends that demonstrate:
- they are each other's sole domestic partner in a long-term, committed relationship and intended to remain so indefinitely
- they are responsible for biological or adopted children during the relationship
- they are living together on a permanent basis, share the household domestic duties, are responsible for the home's expenses and each others necessities of life
- other people believe they are in a genuine marriage-like relationship on the basis they are living together, they have a sexual relationship, they attend social activities together, provide economically for each other and their children.
Evidence of economic support between the two people, for example:
- joint ownership of significant property, e.g. a car or a house
- joint bank accounts or other financial investments
- joint liabilities, e.g. credit card debt, mortgage, loan, lease/rental agreements or other bills
- wills, life insurance policies or superannuation naming each other as the primary beneficiary
- any document confirming the deceased made regular child support payments before the death, either voluntarily or as required by a court, e.g. Child Support Agency Notices
- any other evidence which is considered relevant for couples who chose to have separate bank accounts, property, etc.
- Evidence to assess the earnings of the deceased for the purpose of the weekly benefit:
- To assess the earnings of the deceased for the purpose of calculating an amount for the weekly benefit, the TAC may ask for copies of income tax returns and PAYG Summariess, or a letter from the pre-accident employer verifying employment and wages. If the deceased qualifies as an earner because they received the new start allowance, the job search allowance or sickness allowance from Centrelink or TAC benefits, WorkCover or similar compensation, the TAC may also ask for details of the deceased's work history, qualifications and employment intentions.
Who is eligible for the lump sum benefit?
To be eligible for the lump sum benefit a surviving partner has to:
- be wholly, mainly or in part dependent on the deceased for economic support, or
- be wholly dependent on the deceased for the care of "children"
The "children" of a person who dies as a result of a transport accident include:
- a child of the deceased born from the relationship or another relationship
- an adopted child of the deceased
- a stepchild of the deceased.
When there is more than one surviving partner, how is the lump sum benefit distributed between those partners?
If there is more than one surviving partner, each receives a share of the lump sum benefit. The amounts will vary as each share is based on the number of years the partners were dependent on the deceased for economic support or for the care of children.
When the deceased's children are not dependent on the surviving partner because they are from another relationship, how is the lump sum benefit distributed between them?
Where the children are from another relationship and are not dependent on the surviving partner, the lump sum benefit is distributed amongst each child based on a formula which takes into account that the surviving partner is also entitled to a share of the lump sum. Once each child's share is calculated, the surviving partner receives an amount based on the balance of the lump sum and on the number of years the surviving partner was dependent on the deceased. Refer to the Surviving Dependent Child policy.
Is there a separate lump sum payable for a child/children of the deceased where the child/children's surviving parent is a dependent surviving partner?
A child cannot receive the lump sum benefit, weekly benefits and the education allowance where the other parent (the surviving partner) has sole responsibility for the child's care and is eligible to receive the lump sum benefit and/or the weekly benefit.
If an injured client receives an impairment lump sum and subsequently dies from the transport accident injuries, how does the payment affect the surviving partner's entitlement to a death lump sum?
An injured client is entitled to an impairment lump sum and if he/she subsequently dies, his/her surviving partner is entitled to claim a death lump sum. Where the injured client received an impairment benefit and later dies from the injuries, this payment is deducted from the death lump sum and the balance paid to the surviving partner or partners. A death benefit lump sum is not payable if the impairment benefit is greater than the death benefit. If an impairment benefit payment exceeds the death benefit the TAC will not recover the difference. Refer to the "Issues Affecting Impairment Benefits" section within the Impairment Benefits policies.
Who is eligible for weekly benefits?
The surviving partner of a deceased who was an earner may also be entitled to weekly benefits in addition to a lump sum payment to compensate for the loss of the deceased's earning capacity.
When considering entitlement to a surviving partner of a deceased earner, "earner" includes a person who at the date of the transport accident was:
- at least 15 years of age, or
- is exempt from attending school under section 74G of the Community Services Act (1970) and who has a permit or licence granted under section 13 of the Child Employment Act 2003, and
- is in full-time or part-time employment as an employed or self-employed person:
- at any time during the 8 weeks immediately before the accident, or
- during a period, or periods, equal to at least 13 weeks during the 1 year immediately before the accident, or
- during a period, or periods, equal to at least 26 weeks during the 2 years immediately before the accident, and
- at the date of the accident had not retired permanently from all employment; or
- received a New-Start, Job-Search, or Sickness-Allowance or is part of an unemployed couple and his/her spouse received one of the above allowances during a period, or periods equal to at least 26 weeks during the 2 years immediately before the accident.
An "earner" also includes a person who before the transport accident entered into an arrangement (whether or not an enforceable contract) with an employer or other person to undertake employment or to commence business as a self-employed person, at a particular time and place. For example, a person who was engaged solely in home duties or was unemployed for 2 years or more before the transport and who had entered into a prospective employment arrangement.
What if the person was not working at the date of the transport accident because they were in receipt of accident compensation?
An "earner" also includes a person who at the time of the transport accident was receiving WorkCover or another type of approved worker's compensation payments or TAC loss of earnings benefits (LOE) for a previous transport accident.
Who is not an earner?
The TAC does not consider an "earner" to include:
- a person who was receiving LOEC benefits at the time of the transport accident in question, as LOEC benefits do not constitute earnings, but are compensation for the loss of an asset, i.e. the capacity to earn; or
- a person who was permanently retired from employment at the date of the transport accident (i.e. Aged pensioner, self funded retiree).
How are the weekly benefits calculated?
The weekly benefit is calculated by using the deceased's earning capacity at the time of the transport accident and what amount the deceased would have been capable of earning in the 12 months following the death.
Weekly benefits are also payable where the date of death is not the date of the transport accident, provided a direct link between the initial transport accident injury and the cause of the death can be established.
When there is more than one surviving partner, how is the weekly benefit distributed between those partners?
If there is more than one surviving partner each receives a share of the weekly benefit. The amounts will vary as each share is based on the number of years the partners were dependent on the deceased for economic support.
How long are weekly benefits payable for?
The TAC pays weekly benefits for up to 5 years after the death of the earner or until the surviving partner attains the age where he/she becomes eligible to receive the age pension from Centrelink, whichever first occurs. However, where a surviving partner has a dependent child, the TAC will continue to pay weekly benefits for as long as the child remains dependent on the surviving partner and is a full-time student under the age of 25 years, but does not include a child who has a partner. Refer to the Surviving Dependent Child policy.
Impact of an award or settlement of damages at common law on entitlements
How does an award or settlement of damages at common law affect entitlements?
If the surviving partner receives an award or settlement of damages at common law in respect of the death of a partner under the Wrongs Act 1958, weekly benefits will cease and any lump sum benefit or weekly benefits already paid will be deducted from the award or settlement.
Transport Accident Act 1986 reference: s.93(11A)
Refer to the TAC's Indexed Statutory Amounts. This schedule details lump sum amounts indexed by the Consumer Price Index (CPI) and weekly amounts indexed by Average Weekly Earnings (AWE). The surviving partner's weekly benefit is indexed using AWE.
Forms and Brochures
- Client Brochure - TAC support when a person dies