Benefits Due Deceased Persons

A. If prior to the claimant’s death, a claimant had filed a weekly certification, for benefits which were unpaid at the time of the claimant’s death, the benefits shall be paid to the deceased claimant's court-appointed executor, administrator or personal representative. If the deceased claimant's next of kin demonstrates, to the secretary's satisfaction, that the court appointment of a fiduciary is impractical or legally unnecessary, then the benefits shall be paid to the next of kin. The order of priority for such payment shall be: (1) one-half to the surviving spouse, if residing with the deceased claimant at the time of death, and one-half to the natural parent or physical custodian of any minor children or any dependent disabled adult children of the deceased claimant (if more than one, per capita by children and not per stirpes); (2) if no minor children and no dependent disabled adult children of the deceased claimant, all to the surviving spouse; if no surviving spouse, all equally (3) to the surviving adult children; if no surviving adult children, all equally (4) to the surviving parents; if no surviving parents, all equally (5) to the surviving siblings; if no surviving siblings, all (6) to the deceased claimant's heirs at law as provided in the New Mexico Probate Code, Sections 45-2-101 through 45-2-114 NMSA 1978. B. Whenever there is more than one legal heir in any of the above classes, payment may be made to any one of such group as agent for the others upon submission of proper evidence of authority and identification. C. Application for payment of benefits must be made in writing and on the prescribed form within six months of the death of the decedent and must be accompanied by a certified copy of the death certificate. The application form shall set forth that the individual died intestate, that no executor, administrator or personal representative has been appointed to administer the deceased claimant's estate, and the relationship of the person to the deceased. Any outstanding payments representing benefits claimed must accompany the application for payment for re-issuance. D. Unless, within the time prescribed herein a claim is made for benefits due a deceased claimant by one of the parties herein authorized to make such claim, any payments issued directly to the deceased claimant shall be canceled, and any additional benefit payments due to the deceased claimant for weeks of unemployment prior to the claimant’s death shall be canceled, and all sums represented by benefits payable to the deceased claimant prior to the claimant’s death shall remain a part of the unemployment compensation fund. [11.3.300.318 NMAC - Rp, 11.3.300.318 NMAC, 11/1/2018] 11.3.300.319 STANDARDS FOR WAGES ELIGIBLE TO PURGE BENEFIT DISQUALIFICATION; BONA FIDE EMPLOYMENT: In determining whether a claimant has earned wages to requalify for benefits after imposition of a disqualification under the provisions of Section 51-1-7 NMSA 1978, the following shall apply: A. Wages required to requalify will include both covered and non-covered wages, but will not include earnings from self-employment or earnings excluded under the provisions of 11.3.300.317.NMAC. 11.3.300 NMAC 13 B. The wages must have been earned for work performed subsequent to the effective date of the disqualification. C. The proof required to establish wages for requalification may consist of check stubs or other payment records, employer statement or W-2 form if the W-2 establishes that the wages were paid after the effective date of the disqualification. When employers' quarterly wage reports available to the department show the contended wage items, the department may accept the report as proof of wages. If necessary for a determination under Subsection B of 11.3.300.319 NMAC, the period during which the wages were earned shall be established by other proof. D. Except for wages of which the department has knowledge through employers' quarterly wage reports, the burden of establishing requalifying wages shall rest on the claimant. The department may, as it deems appropriate, assist the claimant in the verification of wages which the claimant states that the claimant has earned but of which the claimant has no proof or insufficient proof, by contacting the employers. E. The wages must have been earned in “bona fide” employment. The basic test to determine whether employment is “bona fide” to purge a disqualification is whether the total facts lead a reasonable person to conclude that the claimant was in good faith genuinely attached to the labor market. A claimant is not engaged in bona fide employment when the service is performed for the purpose of purging a disqualification. No fixed rule can govern when employment is “bona fide,” but the following factors shall be considered by the department: (1) whether a valid, arms-length employer-employee relationship exists; this excludes self- employment and incidental cash payments for services reportedly performed for relatives and friends; (2) whether the work is of the type of which the claimant would accept referral on a full-time basis or for repeated temporary durations; (3) whether the work bears any relation to the claimant's main occupational skills; (4) whether the work is of the type that employers generally offer in the job market; (5) whether the work is related to the particular employer's normal activity and customarily offered to the working public by this employer; (6) whether the employer is registered for employment purposes with appropriate taxing and licensing authorities; (7) the nature of the work, concerning hours to be worked, where the work is performed, and rate of pay; (8) whether the employer can produce payroll records to substantiate the amount of payment and appropriate tax withholding information; (9) whether the wages for the employment were equivalent to the claimant's wages in the claimant’s usual occupation or last preceding employment; and (10) the manner in which the work was obtained, and the nature and extent of the claimant's search for work.