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Compensating Heirs of Decedents in Wrongful Death Actions

In New Mexico civil actions for wrongful death must be brought, according to N.M. Stat. 41-2-3, by a personal representative within three years of the date of the death of the person caused by the wrongful act, neglect or default of another. If the deceased has left a spouse, child, father, mother, brother, sister or children, the proceeds of the any judgment awarded in a wrongful death case in New Mexico will not be used to pay the debts of the deceased. Rather they will be apportioned to certain parties who will have priority as listed below:


1.     if there is a surviving spouse and no child, then to the spouse;   

2.     if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;   

3.     if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right of representation;   

4.     if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor;   

5.     if there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any.


Under these statutory rules, the personal representative bringing the wrongful death case, could be either the parents – or one parent – of the deceased or could be a spouse or even child of the decedent. What is critical to understand is that, in the context of the lawsuit, the personal representative is not necessarily seeking to recover damages for oneself unless, under the scheme shown above, the personal representative also happens to be the qualifying recipient of the funds from the judgment or settlement.  


The attorneys at Giddens & Gatton Law, P.C. represent individuals in personal injury suits in New Mexico. Giddens & Gatton Law, P.C. is located at 10400 Academy Road N.E., Suite 350 in Albuquerque, New Mexico. Call the office at (505) 633-6298 to set up an appointment or visit the firm’s website at   



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