EspañolAfter the death of a loved one, legal deadlines are rarely the first thing families think about. It is painful to have discuss items such as deadlines with mourning families, but the reality is these deadlines are important. Unfortunately, New Mexico law places firm limits on how long a wrongful death claim can be filed, and missing those deadlines can permanently bar the case no matter how strong it may be.
Thus one of the most important questions families ask is “How much time do we actually have?”
Since there are some differences between the personal injury statute of limitation and the wrongful death statute of limitation, it is worth explaining how this works.
The General Rule: Three Years in New Mexico
In most cases, a wrongful death lawsuit in New Mexico must be filed within three years.
This comes from New Mexico’s Wrongful Death Act which provides that a wrongful death action must be brought within three years after the cause of action accrues. NMSA 1978, § 41-2-2.
Under New Mexico law, a wrongful death claim generally accrues on the date of death, not on the date of the accident or negligent act. Even if the negligence occurred earlier, the wrongful death claim does not legally exist until the person passes away. As a result, the three-year clock typically begins to run when death occurs. This timing is critical because families must file within that window to recover in a wrongful death action.
For most families, the practical takeaway is straightforward:
You usually have three years from the date of death to file a wrongful death claim in New Mexico.
Why the Deadline Starts at Death (Briefly Explained)
New Mexico treats wrongful death as a separate statutory claim, not a continuation of the injured person’s personal injury case. Before death, the injured person may have had a personal injury claim. Once death occurs, that claim ends and a new wrongful death claim arises for statutory beneficiaries.
Because the wrongful death claim does not exist before death, the statute of limitations does not begin running until death occurs. That is why the three-year deadline is generally tied to the date of death rather than the accident itself. See NMSA 1978, § 41-2-2.
Who Must File Within That Time
Under New Mexico law, a wrongful death claim must be filed by the personal representative of the deceased person’s estate, not by individual family members directly. NMSA 1978, § 41-2-3.
This often requires opening a case and appointing a personal representative for wrongful death estate. Delays in getting a personal representative appointed can create problems if they push the case too close to the filing deadline.
How personal representatives are appointed, and why they are necessary is a topic for another article. But it is sufficient for purposes of this topic to know that a personal representative does have to be appointed by the court, and that can take some time.
Shorter Deadlines When a Government Entity Is Involved
While three years is the general rule, wrongful death claims involving government entities or public employees often have much shorter timelines.
If the death may involve a city, county, school district, state agency, or other public entity, the New Mexico Tort Claims Act may apply. In those cases:
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Written notice is generally required within 90 days of the death, unless the government entity had actual notice. NMSA 1978, § 41-4-16(B).
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The time to file a lawsuit is generally limited to two years, not three. NMSA 1978, § 41-4-15(A).
These deadlines can vary depending on the facts, the type of government entity involved, and whether actual notice exists. However, families should assume that government-related cases move on a much faster clock unless proven otherwise.
Why Waiting Can Still Be Risky
Even when a family is technically within the statute of limitations, waiting too long can still hurt a wrongful deathS case. Evidence can be lost, witnesses’ memories can fade, and delays can complicate things.
Starting the process early does not mean rushing into litigation. It simply ensures that deadlines are protected, and options remain available.
Summary
In most cases, a wrongful death claim in New Mexico must be filed within three years of the date of death. NMSA 1978, § 41-2-2.
Claims involving government entities often have shorter notice and filing deadlines, sometimes as short as 90 days for notice and two years to file suit, depending on the circumstances. NMSA 1978, §§ 41-4-15, 41-4-16.
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