According to the New Mexico Compilation Commission, the deceased person’s personal estate representative must file the lawsuit. In most cases, the deceased will name this person in his or her estate plan.
The representative is usually a surviving spouse, adult sibling, parent or other next-of-kin. The court may appoint an estate representative if the chosen person is not willing to take on the role, or if the deceased does not have an estate plan.
While the estate’s representative must file the wrongful death claim, any awarded damages must go into the estate to benefit surviving family members. Damages typically go to the following people:
- If the spouse survives and there are no children, then he or she will receive all damages.
- If the surviving spouse has children with the deceased, then he or she will get half the damages and the children or grandchildren will receive the other half.
- The court will divide all damages among the children or grandchildren if the spouse is also deceased.
If the deceased is below the age of 18 or is unmarried without children, then his or her parents will receive the awarded damages. If the deceased has no surviving parents, then the damages will go to his or her siblings, regardless of the deceased’s age.