Detailed Answer

This article explains how a person in New Mexico can enforce or dispute an oral agreement about dividing proceeds from a wrongful death recovery. It assumes no prior legal knowledge and uses a simple, step-by-step approach. This is general information only and not legal advice—see the disclaimer at the end for more.

Who controls a wrongful-death claim and its money?

In New Mexico, a wrongful-death action is brought for the benefit of certain survivors and is typically pursued by the personal representative (executor or administrator) of the decedent’s estate. The Wrongful Death Act outlines the cause of action; for the statute see the New Mexico Legislature’s statute pages (search for the “Wrongful Death Act”, NMSA 1978, Chapter 41). A personal representative usually has the authority to sue, settle, and receive settlement proceeds on behalf of the estate, and the representative must then distribute recovery according to the law and the estate’s instructions.

Why oral agreements about dividing proceeds cause problems

Oral agreements between heirs or beneficiaries about how to split wrongful-death proceeds are common but risky. Because they are not written, they are harder to prove. Courts prefer written agreements and formal court approval for distribution of estate funds. If parties disagree later, enforcement requires evidence showing the parties actually agreed and intended to be bound.

Steps to enforce an oral agreement in New Mexico

1. Identify who has legal authority. Confirm whether the agreement is between beneficiaries only or whether the personal representative was involved. If the personal representative (PR) made or accepted the agreement, that strengthens enforceability. If the PR did not join or approve a proposed split, the PR may be bound by statute or by court supervision to follow probate rules rather than an informal oral deal.
2. Collect evidence of the oral agreement. Useful proof includes witness testimony, contemporaneous emails or text messages that reflect the agreement, recorded conversations (if legally made), notes, bank transfers consistent with the split, or any partial performance (e.g., one party paid expenses or took possession consistent with the promised share). Where there is partial performance, courts are more likely to enforce an oral promise.
3. Demand resolution in writing. Send a written demand to the other parties and the personal representative describing the oral agreement, the evidence you have, the remedy you want, and a deadline to respond. A formal demand letter often leads to negotiation and can be useful later in court as proof of your position.
4. Consider mediation or negotiation. Probate disputes often settle in mediation. A neutral mediator can help convert an oral accord into a written settlement or agreement that can be presented to the probate court for approval.
5. Ask the probate court to intervene. If negotiation fails, file a petition in the probate court that is handling the estate. Common petitions include a petition to confirm or enforce an agreement, a petition for instructions, or a petition to compel distribution. If the estate is not open in probate, you may need to ask the court to open an estate or to appoint a personal representative before resolving distribution.
6. File a civil action if necessary. If the dispute is effectively a contract dispute among beneficiaries or against someone who received funds, you can sue for breach of contract, unjust enrichment, or conversion. If the personal representative wrongfully refuses to distribute proceeds, you can petition the probate court for an accounting and distribution.

How a court evaluates an oral agreement

When a court reviews an oral agreement about dividing wrongful-death proceeds it usually asks:

• Was there a clear, mutual agreement on material terms (who gets what share)?
• Did the parties perform any acts consistent with the agreement (partial performance)?
• Was the personal representative involved or did the agreement conflict with statutory distribution rules?
• Is there credible evidence (witnesses, contemporaneous messages, financial transactions)?

Court findings often turn on credibility and evidence. Oral promises without corroboration are difficult to enforce.

Practical considerations and common outcomes

• If a majority of lawful heirs agreed orally and the personal representative followed that split, a court may approve the distribution, especially if there is corroborating evidence.
• If a personal representative disapproved of an oral pact between heirs and distributed differently under the probate code, heirs who believe they were cheated must typically challenge the PR in probate court.
• When an agreement conflicts with the decedent’s will or with statutory priorities for distribution, the statute and will instructions usually govern, unless the parties get a court to approve a different allocation.

Where to find the governing statutes

For the statutory framework, consult the New Mexico statutes related to wrongful death and probate on the New Mexico Legislature website: https://www.nmlegis.gov/Legislation/Statutes. Search within the statutes for the Wrongful Death Act (NMSA 1978, Chapter 41) and for probate and estate administration (NMSA 1978, Probate Code sections).

Helpful Hints

• Document everything now: collect texts, emails, witness names, and any payments or bank records tied to the expected split.
• Get the oral agreement reduced to writing as soon as possible and have all parties and the personal representative sign it. A written, signed agreement is far easier to enforce.
• Preserve evidence: make backups of digital messages and keep originals of any written notes or checks.
• Contact the probate court clerk to learn whether the estate is open and which judge or division handles the matter—many procedural steps must be filed in the correct court.
• Consider mediation before litigation: it’s faster, private, and often less expensive than a court fight.
• Act promptly. Delays can make evidence disappear and may allow others to rely on or change distributions.
• Ask whether the personal representative executed a settlement release or court-approved order—such documents may bar later claims unless procured by fraud or wrongdoing.

Next step: If you want help evaluating your specific situation, bring your documents (any written communications, names of witnesses, bank records, and probate filings) to a lawyer who handles probate or wrongful-death matters in New Mexico. A local attorney can advise on deadlines, required filings, and the likelihood of enforcing an oral agreement based on the evidence.

Disclaimer: This article is for informational purposes only and is not legal advice. It does not create an attorney-client relationship. Laws change and every case is different; consult a licensed New Mexico attorney before making decisions about legal rights or court actions.