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New Mexico Wrongful Death Statute

January 24, 2022
new mexico wrongful death statute

Losing a loved one is an unimaginable loss no one deserves to endure, and it can be more painful to learn that their death could have been avoided.

If you lost a loved one due to the negligent conduct of another, the last thing you may be thinking about is compensation for your loss. No amount of money could ever compare with the magnitude of losing a loved one.

However, obtaining compensation in a wrongful death lawsuit could assist your family in moving forward in its grief without additional financial burden.

Discuss the facts of your case with a qualified personal injury attorney to help you bring a wrongful death claim.

What Is the Wrongful Death Lawsuit? 

A wrongful death lawsuit allows surviving family members to recover compensation for a loved one killed by the wrongful act, neglect, or default of another. A wrongful death lawsuit proceeds through civil court to recover compensatory damages and possibly punitive damages. 

What Is the New Mexico Wrongful Death Statute?

The New Mexico wrongful death statute identifies rights and remedies for surviving family members of a deceased person.

The New Mexico wrongful death statute provides that if the act, neglect, or default of another had not killed the victim and the victim would have had the right to recover compensation in a personal injury action, then the person who caused the death is liable in a wrongful death claim.

There are various examples of a death that may fall under New Mexico’s wrongful death statute. These include the following:

  • Car accident deaths,
  • Bicyclist and pedestrian deaths, 
  • Crime-related deaths,
  • Medical malpractice,
  • Dog attacks, 
  • Fire. 

If you are unsure whether the death of your loved one falls under the New Mexico wrongful death statute, contact a personal injury attorney to discuss the facts of your case. 

Who Can File a Wrongful Death Claim in New Mexico? 

The New Mexico wrongful death statute permits only certain parties to bring a wrongful death claim. A personal representative must file a wrongful death claim. Who the personal representative is depends on the circumstances surrounding the case.

For example, in the case of a married person, the surviving spouse would likely file a wrongful death claim as the deceased’s personal representative. A deceased person’s will may also name a personal representative.

If the deceased person did not have a will at the time of their death, and there is no surviving spouse, typically a sibling or perhaps an adult child of the deceased will bring the claim. 

What Is the New Mexico Wrongful Death Statute of Limitations?

The New Mexico wrongful death statute of limitations is three years from the date of death. A statute of limitations is a law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings.

Very few exceptions exist to this three-year rule. If someone fails to file their claim within the established statute of limitations period, the personal representative loses the right to file a lawsuit. Therefore, it’s crucial to speak to a personal injury attorney promptly following the death of a loved one. 

Determining Liability 

Determining liability for wrongful death is a crucial element in obtaining compensation. Establishing the essential elements of negligence is required for holding someone legally accountable for a wrongful death. A negligence claim has four basic elements: duty, breach, causation, and damages.


A personal injury attorney establishes that the defendant in a wrongful death lawsuit owed a duty of care to the deceased. For example, a driver owes a duty of care to those around them to operate their vehicle reasonably so as to avoid causing an accident.


The defendant must have breached this duty of care or failed to uphold their duty of care. In the previous example, a driver fails to operate their vehicle reasonably if they are intoxicated at the time of the accident.


You must establish that the defendant’s breach of duty caused the wrongful death of your loved one. Continuing with the same example, the defendant, while intoxicated, hit and killed a pedestrian crossing in a crosswalk.

Using these facts, the surviving spouse of the pedestrian killed in the accident may choose to file a wrongful death lawsuit against the driver for causing the death of the loved one. 


In a wrongful death case, the death of the victim will create damages—both economic and non-economic—which we discuss in greater detail in the next section.

What Are the Possible Damages in a New Mexico Wrongful Death Lawsuit? 

When your attorney proves liability for the death of your loved one, the lawsuit moves forward with the issue of compensation.

Wrongful death lawsuits seek to compensate surviving family members for their loss. Compensatory damages are separated into two categories called economic damages and non-economic damages. 

Economic Damages 

Economic damages include direct financial losses that are calculated with certainty. These damages include:

  • Medical expenses, 
  • Funeral and burial expenses, 
  • Loss of economic benefits like life insurance, 
  • Loss of financial support, 
  • Loss of inheritance.

Support for economic damages comes from receipts, invoices, pay stubs, and statements. It’s important to maintain all records of these losses to prove these economic losses. 

Non-Economic Damages 

Non-economic damages include intangible, subjective losses that are identified as the following:

  • Emotional distress, 
  • Loss of love, 
  • Loss of companionship, and
  • Loss of consortium.

Non-economic damages often comprise the bulk of damages in wrongful death cases. These damages vary greatly from case to case because they require the valuation of something incalculable—the loss of a loved one.

For this reason, non-economic damages are incredibly difficult to quantify. However, recovery of these damages can assist you and your family members in moving forward after such a devastating loss. 

How Are Damages Distributed? 

The estate of the deceased person holds all damages awarded in a wrongful death lawsuit for surviving family members. The order of distribution for awarded damages is as follows: 

  • All to the surviving spouse if there are no children.
  • If there is a surviving spouse and one or more surviving children or grandchildren, damages are divided one-half to the surviving spouse and one-half to the surviving children and grandchildren.
  • If there is no surviving spouse but there are surviving children or grandchildren, the damages award is divided among the surviving children and grandchildren according to right ofto representation as authorized by New Mexico law.

If the deceased person had no surviving spouse or surviving children or grandchildren, the deceased person’s parents receive the damages award. If there are no surviving parents, the damages are split among the deceased person’s surviving siblings. 

Contact Us 

For nearly forty years, the attorneys at Fadduol, Cluff, Hardy & Conaway, P.C., have focused on providing the highest caliber legal representation to those seriously injured through no fault of their own.

We understand how difficult it must be to lose a loved one due to another’s negligence, and we know that no amount of money could ever bring back or resolve the pain you must be feeling.

Our attorneys focus on supporting our clients through the most challenging period of their lives while aggressively pursuing justice for loss.

Wrongful death lawsuits in New Mexico are highly complex. Don’t walk this road alone. Let the attorneys at Fadduol, Cluff, Hardy & Conaway help you.

Contact us today for a case review.