Understanding Whether Wrongful Death Proceeds Follow a Decedent’s Will in New Mexico
Short answer: Under New Mexico law, wrongful death damages generally do NOT pass under the decedent’s Last Will and Testament. They are statutory damages for the benefit of certain survivors and are distributed under the Wrongful Death Act, not by the terms of a will. A separate survival action (for the decedent’s own claims that survive death) may become part of the probate estate and could be distributed under the will.
Detailed answer — How New Mexico treats wrongful death and survival claims
New Mexico separates two different kinds of claims that arise when someone dies because of another’s wrongful act:
- Wrongful death claims: These are statutory claims brought for the benefit of the decedent’s surviving relatives. The New Mexico Wrongful Death Act creates a cause of action for wrongful death and directs that recovery is for the benefit of the decedent’s survivors (for example, spouse, children, parents, or other heirs). Because wrongful death damages are intended to compensate the survivors for their losses, the damages are distributed according to the wrongful death statute and not according to the decedent’s will.
- Survival actions: These are claims the decedent could have brought while alive (for example, pain and suffering, lost wages prior to death, medical expenses) that survive the decedent’s death and become part of the decedent’s estate. Proceeds from survival actions generally are estate assets and therefore can pass according to the will or under intestacy rules if there is no will.
In practice, a plaintiff’s attorney will often pursue both types of claims: a wrongful death claim (for the survivors) and a survival claim (for the estate). The recovery for wrongful death is allocated to the survivors; the recovery for survival-type damages is handled as an asset of the estate.
Where this comes from (statutes)
See New Mexico’s wrongful death statute (Wrongful Death Act) for the rules on who may sue and who benefits from a recovery. You can read the statutes and related provisions on the New Mexico Legislature website:
- New Mexico Wrongful Death Act and related provisions: https://www.nmlegis.gov/Laws/Statutes/Chapter/41
- New Mexico probate and estate rules (Uniform Probate Code provisions that govern estate assets and wills): https://www.nmlegis.gov/Laws/Statutes/Chapter/45
Note: the Wrongful Death Act defines who recovers and how damages are apportioned; the probate statutes control how estate assets (including proceeds from survival actions) are administered and distributed.
Illustrative hypotheticals
Hypothetical A — Decedent with a will: Jane dies due to someone else’s negligence. Jane’s personal representative sues. The suit recovers $600,000 total, split $400,000 as wrongful death damages (for the spouse and children) and $200,000 for pre-death pain and suffering (a survival claim). The $400,000 wrongful death recovery is distributed to the survivors under the wrongful death statute and is not governed by Jane’s will. The $200,000 survival recovery is an asset of Jane’s estate and will pass under Jane’s will (or intestacy if there is no valid will).
Hypothetical B — Decedent intestate: Paul dies without a will. Wrongful death damages go to Paul’s statutory survivors as provided by the Wrongful Death Act. Any survival-claim recovery becomes part of Paul’s estate and is distributed under New Mexico intestacy rules.
Practical implications
- If you are a surviving spouse, child, or other potential beneficiary, wrongful death proceeds are intended for your benefit and should not be diverted by the decedent’s will.
- If you are the executor or personal representative, be aware that some recoveries you obtain may belong to the estate (survival claims) and some may belong directly to survivors (wrongful death claims). Proper accounting and allocation are essential.
- Often settlements allocate amounts to wrongful death and survival claims. That allocation affects who receives the money and whether it flows through probate.
Helpful Hints
- Do not assume all money recovered after a death is estate property; ask whether the recovery is for wrongful death (for survivors) or a survival claim (for the estate).
- When negotiating a settlement, try to get a clear written allocation between wrongful death and survival claims. The allocation affects distribution and tax treatment.
- If you are a personal representative, keep careful records and segregate funds that belong to the estate from funds payable directly to survivors.
- Consult an attorney experienced in wrongful death and probate to advise on how to file claims, allocate recovery, and administer any estate assets. Wrongful death suits have procedural rules and strict timelines.
- If you are unsure whether a claim is a wrongful death claim or a survival claim, ask the attorney handling the case to explain the legal basis and the expected distribution — then get that explanation in writing in the settlement agreement.
- Review the Wrongful Death Act and probate statutes to understand who qualifies as an heir and how distributions are made: New Mexico statutes are available at the New Mexico Legislature site for Chapter 41 (wrongful death) and Chapter 45 (probate): Chapter 41, Chapter 45.
How to proceed: If you are a potential beneficiary or personal representative, consider meeting with a lawyer who handles wrongful death and probate cases. Bring copies of any settlement offers, the decedent’s will (if any), and the proposed allocation of claims.
Disclaimer: This article is for general information only and is not legal advice. Laws change, and the application of law to specific facts can vary. Consult a licensed New Mexico attorney to get advice about your situation.