Who Can File a Wrongful Death Claim in New Mexico

By the FigureMyTax Editorial Team · How we calculate

New Mexico has one plaintiff, the personal representative, and a statutory order for who receives the money.

The personal representative sues

Every wrongful death action must be brought by and in the name of the personal representative of the deceased person under NMSA 41-2-3. For this action the term is not synonymous with the Probate Code definition.

Proceeds are outside the estate

The amount recovered never becomes part of the decedent's estate or community property, and the proceeds are not liable for the decedent's debts if the decedent left a spouse, child, parent, sibling or a deceased child's children.

Who receives it

If there is a surviving spouse and no child, the spouse takes it. With a spouse and a child or grandchild, one-half goes to the spouse and one-half to the children and grandchildren. If there is no spouse but a child or grandchild, they take by right of representation, and for a childless, unmarried minor, the parents take equally.

What the jury considers

The jury may give compensatory and exemplary damages it deems fair and just, considering the pecuniary injury resulting from the death and the mitigating or aggravating circumstances of the wrongful act.

Malpractice and government defendants

Malpractice deaths fall under the tiered caps in NMSA 41-5-6, and claims against the government under NMSA 41-4-19.

This is general information, not legal advice, and the state comparisons above are illustrative, not an exhaustive survey. Confirm how New Mexico's rules apply to your specific case with a licensed New Mexico attorney.