| Read Time: 4 minutes | Wrongful Death
wrongful death lawsuit new mexico

Wrongful death lawsuits exist to compensate surviving family members when someone else causes a loved one’s death. Had your loved one lived, they could have brought a personal injury lawsuit themselves and held the defendant accountable for injuring them through negligent or reckless conduct. Simply because the victim has died, the defendant is not let off the hook. Instead, the defendant must pay compensation which will go to the deceased’s family members.

Here’s all you need to know about wrongful death lawsuits in New Mexico–and where you can find help.

New Mexico Wrongful Death Statute

According to New Mexico statute 41-2-1, a wrongful death is any death caused by a wrongful act, neglect, or default. This definition encompasses both accidental and intentional deaths. At Tawney, Acosta & Chaparro P.C., we most often see wrongful death lawsuit in the following types of cases:

  • Car accidents
  • Truck accidents
  • Pedestrian accidents
  • Medical malpractice
  • Premises liability cases, such as slip and fall
  • Defective products

Who May Sue and Receive Compensation

New Mexico requires that the estate’s personal representative file the wrongful death lawsuit. If your loved one had a will, the personal representative should be named in it. However, if there was no will, then a probate judge will name someone to serve in this capacity. Chances are, a close family member will be the personal representative, such as a spouse or adult child.

Although the representative files the lawsuit, they bring the suit on behalf of family members:

  • If the deceased left behind a spouse but no children, then the spouse gets all of the financial compensation from the lawsuit.
  • If the deceased left behind a spouse and descendants (children or grandchildren), the spouse receives half of the compensation and the descendants divide the other half.
  • If only descendants are remaining, then they will divide the compensation according to New Mexico’s laws.
  • If the deceased had no spouse or descendants, then parents can receive the compensation.
  • If the deceased left behind no spouse, descendants, or parents, then siblings will receive the compensation.

New Mexico’s wrongful death statute is complicated, and grieving family members are not expected to understand the intricacies of the law. Instead, schedule a consultation with a New Mexico wrongful death attorney right away to discuss whether you have a right to compensation.


No amount of money can ever replace a loved one. Nevertheless, awarding compensation is all a court can really do, so it can demand that any defendant who caused your loved one’s death pay you money. This compensation is called “damages.” There are many different types of damages surviving family members can receive in a wrongful death lawsuit, including:

  • Funeral and burial expenses
  • Any medical bills for treating the deceased after their last injury
  • Any pain and suffering your loved one experienced before passing
  • The loss of companionship because of your loved one’s death
  • Mental suffering as a result of losing a spouse, child, or parent
  • Any financial contributions the deceased made to the household
  • Lost inheritance

Not all of these damages are available in all cases, so it is vital that you carefully review your case with an attorney. Many of these damages are hard to calculate, such as pain and suffering or loss of companionship, but a lawyer can rely on their experience to estimate the amounts you might receive.

Wrongful Death and Criminal Prosecutions

Because family members can bring a wrongful death lawsuit for criminal acts like homicide or manslaughter, there might be a criminal prosecution going on at the same time. A wrongful death differs from a criminal prosecution in 4 key ways:

  • The estate’s personal representative brings a wrongful death lawsuit, whereas the state brings a criminal prosecution.
  • The standard of proof in a wrongful death lawsuit is proof by a “preponderance of the evidence,” meaning it is more likely than not that the defendant caused your loved one’s death. In a criminal matter, the prosecution must prove its case “beyond a reasonable doubt.” This is why someone like O.J. Simpson can be acquitted of a murder charge but still be found liable for wrongful death.
  • A wrongful death lawsuit is brought only for money damages. Because of a criminal conviction, a defendant can be sent to jail, put on probation, and lose certain rights, such as the right to vote or own a firearm.
  • A defendant can be liable for wrongful death for simple negligence, such as failing to look in a rearview mirror before backing up. However, criminal cases usually require more extreme negligence before a person will be prosecuted.

If there is a criminal case already ongoing, then you should consult with an experienced New Mexico wrongful death attorney.  You might want to delay your civil wrongful death lawsuit until after the criminal case has concluded.

Avoid Delay

New Mexico law does not give the personal representative an unlimited amount of time to sue. Instead, the law requires that the representative file the lawsuit within three years of the date of death. If this person delays filing, then a judge can dismiss the lawsuit, denying family members the right to compensation for their losses.

If you are worried that you are fast approaching the deadline, please contact a New Mexico wrongful death attorney as soon as possible. Sometimes, personal representatives drag their feet or are unaware of whether they should file the lawsuit, and you need appropriate legal advice about how to protect your rights.

Speak with a Wrongful Death Attorney at Tawney, Acosta & Chaparro P.C. Today

After the passing of a loved one, you might be in shock and worried about your future. Bringing a lawsuit is probably the last thing on your mind. Nevertheless, you must act quickly to protect your rights. At Tawney, Acosta & Chaparro P.C., our New Mexico wrongful death attorneys have helped many grieving family members get the compensation they deserve to secure their family’s future. We know how to bring wrongful death lawsuits the right way and are happy to offer our services to you.

To schedule your free consultation, please call or submit an online message.

Author Photo

James Tawney

James Tawney is a native of the Southwest dedicated to serving his community. He was born and raised in Arizona where he attended Northern Arizona University where he received his undergraduate degree. James then went on to attend Texas Tech University School of Law in Lubbock, Texas. In 2016, he, along with fellow plaintiff’s attorney Alejandro Acosta, founded Flores, Tawney & Acosta, P.C. with offices located in Las Cruces and Carlsbad, New Mexico, and El Paso, Texas.

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