Losing a loved one in an accident can be a devastating and unexpected loss. Making any kind of decision following their death can seem overwhelming or downright impossible. Adjusting to life after a tragedy takes time.
If you’ve lost a loved one in an accident caused by another person’s reckless or irresponsible actions, you may be able to file a wrongful death lawsuit and seek compensation.
What is Wrongful Death?
New Mexico legislature defines wrongful death as one caused by a “wrongful act, neglect, or default” of another.
Common causes of wrongful death include medical malpractice, defective products, nursing home abuse, road accidents, and more.
A wrongful death claim is similar to a personal injury claim. In a personal injury claim, a person files a lawsuit against another person, seeking monetary compensation (damages) for their injuries.
In a wrongful death claim, a partner or surviving family member of the deceased injured party files the lawsuit since the deceased cannot file the claim themselves.
Who Can File a Wrongful Death Claim?
According to New Mexico law, “the personal representative of the deceased person” may file a wrongful death claim on their behalf. A personal representative is often a surviving spouse or an adult sibling of the deceased.
If there’s no personal representative named in the deceased’s estate plan, or the personal representative can’t or refuses to serve, the court will usually appoint a representative for the claim.
Is There a Deadline for Filing in New Mexico?
There is a three-year statute of limitations on filing a wrongful death claim in New Mexico. This three-year “deadline” begins at the date of the person’s death.
New Mexico’s statute of limitations prevents wrongful death claims from being filed more than three years after the date of death.
However, some factors may pause or affect the three-year time period. For example, if your loved one was severely injured in a car accident but survived for two months before passing away, the three-year limit may begin on the accident date, not their death.
What Kind of Compensation Might I Receive?
You may be able to receive compensation for:
- Funeral and burial expenses
- Medical expenses
- Loss of anticipated wages
- Loss of pension benefits
- Loss of inheritance
- Mental anguish
- Pain and suffering
- Loss of companionship
In some wrongful death claims, you may be able to file for punitive damages. Punitive damages are awarded to punish the person responsible for acting maliciously or with intent to cause harm.
New Mexico has “damage caps” in place for specific claims to keep award amounts under control.
As a pure comparative fault state, damages are reduced in proportion to their degree of fault. This often comes into play in car accident claims.
If a driver is injured in an accident but was found to be 20 percent at fault, they can only recover up to 80 percent of their damages.
Medical malpractice claims in New Mexico do have a damage cap of $600,000 for recovery costs.
This amount does not include medical care, but it does cover other economic damages (like loss of income) and non-economic damages (like pain and suffering). Whether this damage cap is unconstitutional is being debated by the New Mexico Supreme Court.
Who Can Receive Compensation?
Even though a personal representative of the deceased person must file the wrongful death lawsuit, that doesn’t always mean that they’ll receive the damages, or compensation.
Damages are typically awarded in the following way:
- If there is a surviving spouse and no child, all damages are distributed to the spouse.
- If there is a surviving spouse and a child or grandchild, one-half goes to the surviving spouse, and the remaining one-half goes to the children and grandchildren
- If there is no spouse but a child or grandchild, then all damages are distributed to the children or grandchildren according to “right of representation”
“Right of representation,” or “per stirpes,” is a term found in estate plans. It’s a way to describe how a gift in a will should be divided among a person’s descendants.
What if the deceased person has no surviving spouse, children, or grandchildren? Surviving siblings may receive the damages. If there are no surviving family members, then damages are “disposed of in the manner authorized by law.”
How Can a New Mexico Wrongful Death Attorney Help You?
No amount of money can replace the loss of a loved one. Navigating the grief and sudden, unexpected change to your life can be emotional and difficult enough as is. That’s why a wrongful death attorney can shoulder the burden and recover the compensation you deserve on your behalf.
Whitener Law Firm’s team of wrongful death lawyers is here to help you and your family. To schedule a free initial consultation, call (505) 883-7877 or fill out a contact form online. You can also like and follow the Whitener Facebook page for more updates and legal resources.