8.3.1.2 Presumption of Dependency

• Jurisdiction: Arizona

. A surviving spouse is conclusively presumed to have been totally dependent for support upon a deceased employee, but only if the surviving spouse had not “voluntarily abandoned” the deceased “at the time of the injury.”^[29] This presumption has survived constitutional scrutiny.^[30]

“Abandonment” means “desertion,” and to prove desertion, “it should appear that the wife left her husband of her own accord, without his consent, and against his will, or that she obstinately refused to return, without just cause, upon his request.”^[31] The courts have found the evidence insufficient to prove an intent to abandon where a wife has countersued for a divorce and written her husband a bitter letter,^[32] the wife was making arrangements to return to her husband on the day of his death,^[33] and the wife could not have returned to her husband even had she wanted to because he was living with another woman at the time of his injury.^[34]

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^[29]A.R.S. § 23-1064 (A)(1)-(2) (Supp. 1991).

^[30]El Dorado Ins. Co. v. Industrial Comm’n, 25 Ariz. App. 617, 545 P.2d 465 (1976).

^[31]Putvain v. Industrial Comm’n, 140 Ariz. 138, 141, 680 P.2d 1199, 1202 (1984), quoting Andrade v. Andrade, 14 Ariz. 379, 387-88, 120 P. 813, 817 (1912).

^[32]Putvain, id.

^[33]Clark v. Industrial Comm’n, 10 Ariz. App. 486, 460 P.2d 22 (1969).

^[34]Ranger Ins. Co. v. Industrial Comm’n, 15...