Who can file a wrongful death lawsuit?

Dealing with the unexpected loss of a loved one in New Mexico brings with it not only sadness and heartache, but also the expenses associated with his or her death. Those can include medical bills, funeral costs, as well as the prospect of trying to replace the financial support he or she provided. In the event that your family member or friend's death was due to the intentional or negligent actions of another, pursuing compensation through a wrongful death claim may help alleviate that financial burden. The question then becomes who is entitled to initiate such action?

Section 41-2-3 of the New Mexico statutes states that only the personal representative of your loved one's estate can file a wrongful death lawsuit. Such a lawsuit is essentially a personal injury claim. Yet since your family member or friend is no longer here to represent him or herself, the one acting in his stead must. In the case of estate matters, that is the personal representative.

That is not to say, however, that the proceeds of a judgment that results from such action are awarded to the decedent's estate. The law concerning wrongful death claim management goes on to say that any award from a lawsuit goes to the decedent's family. Your interest in such an award depends on your relationship with the decedent. If he or she was your spouse, it goes to you entirely if you have no children. If you have children (or grandchildren), half of the judgment goes to you, while the other is distributed equally among them. If the decedent was your child, you and your spouse will share an equal interest in the judgment. As a sibling, the award would go to you if your loved one had no surviving spouse or issue. 

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