Under New Mexico law, only the personal representative of the deceased person can file a wrongful death lawsuit. Any compensation goes to surviving family members in an order the statute sets. In a free initial consultation, we ask who survived and what records exist.
Article summary
Key things to know
- One personal representative files for the whole family.
- Any compensation goes to surviving family members in an order the statute sets.
- Juries use no formula. UJI 13-1830 lists the elements of damages the evidence can support.
- If the victim was partly at fault, the recovery is reduced by that share. It is not barred.
- Filing deadlines differ, and cases against a government body move faster.
What counts as a wrongful death claim in New Mexico?
The Wrongful Death Act covers a death caused by the wrongful act, neglect or default of another. The test is whether the victim could have brought a personal injury claim if they had lived. If so, the person or company that would have been liable for the injury is liable for the death. Most wrongful death cases start with an accident caused by carelessness. Car and truck crashes, medical malpractice, workplace accidents, defective products and dog attacks can all support a wrongful death case. So can a tragic death caused on purpose. The claim rests on the defendant’s breach of a duty the victim was owed, and on proof that the breach caused the person’s death.
Who can file a wrongful death lawsuit?
Only the personal representative can file a wrongful death lawsuit in this state. The New Mexico statutes say the claim is brought by and in the name of the personal representative of the deceased person. A spouse, a parent or an adult child cannot file in their own name.
The personal representative does not keep the money. The representative brings the wrongful death action for the surviving family members named in the statute. When those close relatives survive, the law also protects the proceeds from the debts of the deceased. A recovery is not a deceased person’s estate asset for creditors to reach in that case.
Filing deadlines
Questions about how much time you have?
New Mexico wrongful death statute at a glance
| Question | Rule | Source |
|---|---|---|
| Who files | Only the personal representative of the deceased person | Section 41-2-3 NMSA 1978 |
| Statute of limitations | Generally three years from the date of death | Section 41-2-2 NMSA 1978 |
| Claims against the state or a local government | Written notice within six months of the injury that caused the death. Suit within two years of the occurrence | Sections 41-4-16(C) and 41-4-15 NMSA 1978 |
| Damages awarded | Compensatory and exemplary damages the jury finds fair and just | Section 41-2-3 NMSA 1978 |
| Who receives the money | Spouse, children and grandchildren first, then parents, then siblings | Section 41-2-3(A) to (E) NMSA 1978 |
| Spouse’s loss of consortium | A separate claim brought by the spouse | Romero v. Byers (1994-NMSC-031) |
| Shared fault | Pure comparative fault. The recovery is reduced, not barred | Scott v. Rizzo (1981-NMSC-021) |
| Dollar limits | None in the Wrongful Death Act. Other statutes limit malpractice and government claims | Sections 41-2-3, 41-5-6 and 41-4-19 NMSA 1978 |
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How wrongful death damages are calculated
Juries in wrongful death cases do not use a formula. The uniform jury instruction (UJI) 13-1830 tells the jury to fix an amount it finds fair and just for the life of the deceased person. It then lists the elements of damages the evidence can support. The property or wealth of the family or of the defendant is not a factor.
Economic damages
Economic damages cover the financial losses. Under the instruction they may include:
- medical expenses for necessary care and treatment before death
- funeral and burial expenses
- lost earnings and lost earning capacity, based on age, health, habits and life expectancy
- the value of the household services the person provided
Lost earnings are reduced for taxes and the person’s own living expenses. Future amounts are discounted because they are paid in a lump sum.
Non economic damages and the value of life
In Romero v. Byers, the New Mexico Supreme Court held that the value of life itself is compensable under the Act. A jury may also award non economic damages for the pain and suffering the victim experienced between the injury and death. A minor child’s loss of a parent’s guidance and counseling is a recognized loss. Wrongful death compensation may be awarded even when the surviving family members cannot show a measurable money loss. The devastating loss of a child or a parent still has value in court.
Punitive damages
The jury may also weigh aggravating circumstances. Punitive damages punish the wrongdoer and deter others. They are possible when the conduct was malicious, willful, reckless or wanton, and only alongside compensatory damages. The instruction defines reckless conduct as the intentional doing of an act with utter indifference to the consequences. The amount must be reasonably related to the harm.
How wrongful death compensation is divided
Losing a loved one can leave a family divided over money. The statute settles who receives the recovery, and a settlement follows the same fixed order:
- A surviving spouse with no child or grandchild receives all of it.
- A surviving spouse and children split it. One half goes to the surviving spouse and one half to the children and grandchildren.
- With no spouse, the children and grandchildren receive it.
- If the deceased person was a minor, unmarried and childless, the surviving parents receive it in equal shares.
- With none of those relatives, it goes to a surviving brother or sister.
A spouse’s loss of consortium is a separate claim
A surviving spouse can seek compensation for the loss of the relationship itself. The New Mexico Supreme Court calls loss of consortium a separate cause of action brought by the spouse. The jury awards it on its own line. New Mexico has also recognized consortium claims by unmarried partners in some circumstances. This claim has its own filing deadline.
Rules that change a wrongful death case
Shared fault
The state uses pure comparative fault. If the victim was partly at fault, the recovery is reduced by that share. It is not barred.
Claims against the government
A death caused by a state agency, a city, a county or a public school falls under the Tort Claims Act. That law sets a written notice rule and a shorter statute of limitations. The notice has to reach the right office, such as the county clerk for a county or the mayor for a city. The Act also caps what a government body pays and bars punitive damages against it.
Medical malpractice deaths
The Medical Malpractice Act limits most damages in a malpractice death claim. The limit depends on the type of provider and the year of the injury. Punitive damages and medical care are outside the limit.
Workplace and oilfield deaths
Workers’ compensation is generally the only remedy against an insured employer. The family can still recover compensation from any other company whose negligence caused the death, such as an operator, a contractor or an equipment maker. The workers’ comp insurer may have a right to be repaid from that recovery. A suit against the employer itself is possible when the employer willfully or intentionally caused the death. A workers’ comp death claim has its own deadline and notice rule. For a well site in the Permian Basin, Zinda Law Group’s oilfield injury lawyers review the claims against every company on the lease. The rules differ in other states. For those states, read the firm’s national wrongful death guide.
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How to file a wrongful death claim in New Mexico
A New Mexico wrongful death lawyer usually works through six steps with the family in this order.
- The personal representative. This person is chosen first. The claim is filed in that name.
- Gathering evidence. Accident reports, medical records, employment records and witness names are collected before they are lost.
- A government defendant. A claim against a public body needs written notice on a short clock.
- Proving the damages. The legal team proves each element in the jury instruction with records and testimony.
- Negotiating with the insurance company. The lawyer negotiates any settlement with the at-fault party’s insurer. A family should not sign a release or give a recorded statement before talking to a lawyer.
- Filing the wrongful death lawsuit. It is filed in civil court before the deadline. The case is prepared for trial from the start.
A family can be changed forever in one day. Justice in a civil case means a full accounting of that loss, and moving forward starts with knowing the deadline. City pages cover:
You pay nothing unless Zinda wins your case. The law office answers at (800) 863-5312, day or night.
