How Are Proceeds In A Wrongful Death Case Distributed?

By January 15, 2019Wrongful Death

How Are Proceeds In A Wrongful Death Case Distributed?

How Are Proceeds In A Wrongful Death Case DistributedDo you want to know how proceeds in a wrongful death action are distributed? The Wrongful Death Action provides information on just that. The surviving spouse is the first in line followed by the spouse and a child or grandchild. If a parent abandons their child, the distribution of money under the Wrongful Death Act can be altered. A spouse that is close to the patient that died can also make a claim for emotional distress due to the loss of their loved one.

The Wrongful Death Act defines how any proceeds recovered in a wrongful death action are distributed:

The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased; provided the decedent has left a spouse, child, father, mother, brother, sister or child or children of the deceased child, as defined in the New Mexico Probate Code [45-1-101 NMSA 1978], but shall be distributed as follows:

  1. if there is a surviving spouse and no child, then to the spouse;
  2. if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;
  3. if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right of representation;
  4. if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor;
  5. if there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any; and
  6. if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.

The only time this distribution of money under the Wrongful Death Act may be altered is where a parent abandons their child. An adult child abandoning their parent, however, will not alter the distribution scheme created under the Wrongful Death Act. 

In addition to the patient and the patient’s representative, a spouse or child or anyone sufficiently close to the patient may also have a claim for loss of consortium against the healthcare provider.  Loss of consortium is the emotional distress suffered by a person “who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another.” “Loss-of-consortium damages are contingent upon the inured person’s entitlement to general damages.” “Where the defendant is not liable to the injured person for physical injuries there can be no derivative claim for consequential damages by the injured person’s spouse.”  In other words, without the patient or the wrongful death personal representative having a viable medical malpractice case, there is no loss of consortium case.

Finally, there is an extremely narrow action for a bystander who suffers severe emotional shock as a result of witnessing a sudden, traumatic event that causes physical injury or death to a loved one.  In the medical malpractice context, however, it is unlikely that a patient’s loved one could make out all the elements necessary for a bystander claim because patient’s loved one must witness the injury inducing event; not simply the damage afterward.

Now that you know about how proceeds are distributed in a wrongful death case you can take action. Were you the spouse or a loved one in a wrongful death case and did not receive anything? Are you considering bringing forth a wrongful death suit for the loss of a loved one? We can help with all of this here at the Davis Kelin Law Firm. Just give us a call at (505) 242-7200 and we will be happy to assist you.

Tyler Harrison

Author Tyler Harrison

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