When a person dies or is killed due to the negligence or misconduct of another, the surviving members of the victim’s family may sue for “wrongful death.” Most wrongful death lawsuits follow in the wake of criminal trials, using similar evidence but with a lower standard of proof. Regardless, someone found liable for wrongful death may or may not be convicted of a crime associated with that death.

How Does New Mexico Define Wrongful Death?

New Mexico statutes section 41-2-1 defines a wrongful death as one that is “caused by the wrongful act, neglect, or default of another.” The definition includes deaths caused by a wrongful act that amounts to a felony under New Mexico law.

One way to think of a wrongful death claim in New Mexico is as a personal injury claim that the deceased person is no longer able to bring him or herself. Instead, the survivors of the deceased person must bring the claim to court, to establish the defendant’s liability and to seek damages.

In some wrongful death cases, a tribal, state, or federal prosecutor will pursue criminal charges for homicide against the party that is believed to have caused the death. If a criminal case is filed, a wrongful death claim may still be brought to civil court. Because a criminal case can affect a wrongful death claim in several ways, however, it is wise to consult an attorney with experience in New Mexico wrongful death law if a criminal case is proceeding on the same facts.

Who May File a Wrongful Death Case in New Mexico?

In New Mexico, a wrongful death claim must be filed by the personal representative of the deceased person’s estate. In most cases, the personal representative will be a person named in the deceased’s estate plan: surviving spouses are common choices for personal representative, as are adult siblings. If the personal representative named in the estate plan cannot or will not serve, or if there is no estate plan, the court will appoint a personal representative.

Although the personal representative is responsible for filing the wrongful death claim, any damages awarded as a result of the claim are held by the estate for the benefit of surviving family members:

  • If there is a surviving spouse but no children, all damages go to the spouse.
  • If there is a surviving spouse and one or more children or grandchildren, damages are divided one-half to the spouse and one-half to the children or grandchildren.
  • If there is no surviving spouse but there are surviving children or grandchildren, the damages are divided among the children or grandchildren according to New Mexico’s “right of representation” laws.

If the deceased person has no spouse or children or is a child under age 18, the child’s parents receive the damages awarded in a successful wrongful death suit. If there are no surviving parents, damages go to the deceased person’s siblings, whether the deceased is a child or adult.

Damages in New Mexico Wrongful Death Cases

Damages may be awarded in a wrongful death claim if the defendant’s liability is properly established in court. In some cases, the types of damages that are available to certain individuals depends on their relationship to the deceased person. Damages that are typically available in a New Mexico wrongful death claim include:

  • reasonable funeral and burial expenses
  • medical expenses related to the deceased person’s last illness or injury
  • loss of companionship of a deceased family member
  • mental anguish caused by the death of a parent, child, or spouse
  • financial contributions to the household by the deceased person
  • loss of inheritance, and
  • pain and suffering the deceased endured before death.

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If a loved one has died after an accident or injury caused by the negligence or misconduct of another individual, company or entity, you may be entitled to bring a legal action for wrongful death against those responsible.