Rule 1-105.Notice to statutory beneficiaries in wrongful death cases
Last verified June 26, 2026
Full Text of Rule 1-105
Rule History
[Adopted by Supreme Court Order No. 17-8300-027, effective December 31, 2017.]
Committee Commentary
The Wrongful Death Act, NMSA 1978, §§ 41-2-1 to -4, creates statutory rights for the estate of a deceased person at civil law that are not governed by the Uniform Probate Code. The Court of Appeals has ruled that the personal representative referenced in Section 41-2-3 is distinguishable from the personal representative of the estate of the deceased as defined in the Probate Code. See In re Estate of Sumler, 2003-NMCA-030, ¶ 8, 133 N.M. 319, 62 P.3d 776 (“[I]t is improper to equate a personal representative under the Wrongful Death Act with a personal representative as defined by the Probate Code.”). See also Rule 1-017(B) NMRA (providing that a wrongful death action may only be brought by a personal representative appointed by the district court for that purpose).
Notice to known and reasonably ascertainable statutory beneficiaries is to be made under Rule 1-004 NMRA. When the statutory beneficiaries are known to the personal representative, service shall be made in compliance with Paragraph F (Process; personal service upon an individual) or Paragraph I (Process; service upon minor, incompetent person, guardian, or fiduciary) if possible. When Rule 1-004(F) or (I) NMRA service cannot be made on a known statutory beneficiary, the personal representative shall petition the court under Rule 1-004(J) NMRA for an order providing an alternative method of service.
There may be occasions where a potential statutory beneficiary is not known to the personal representative but could be identified with reasonable effort. For example, the deceased may have no living spouse or living child but potentially may have living grandchildren who would be statutory beneficiaries, see NMSA 1978, Section 41-2-3(C), but whose existence or identity are not known to the personal representative. The personal representative must make reasonable efforts to learn of the existence and identity of such grandchildren, and those whose identity are learned must be given notice under Rule 1-004(F), (I), or (J) NMRA.
In rare cases, there may be statutory beneficiaries who are not known to the personal representative and whose identities are not reasonably ascertainable. Paragraph B of this rule does not compel the personal representative to provide some form of notice to such beneficiaries. Compare NMSA 1978, Section 45-1-401(A)(3) (requiring publication notice of hearings to persons having an interest in any hearing whose “address or identity . . . is not known and cannot be ascertained with reasonable diligence”). The mere theoretical possibility that such beneficiaries might exist does not justify the burden and cost of imposing a mandatory publication notice requirement on the personal representative. If the personal representative concludes that such beneficiaries might exist, the personal representative may petition the court under Rule 1-004(J) NMRA to fashion a form of notice, such as publication, to provide them with notice.
Rule 1-105(C)(3) NMRA requires statutory beneficiaries to keep the personal representative apprised of current contact information. Non-compliance may result in the failure of the statutory beneficiary to receive notice of the information set forth in Paragraphs (C)(4), (C)(5), and (C)(6), but shall not constitute a waiver of rights granted by the Wrongful Death Act. See NMSA 1978, §§ 41-2-3, -4.
[Adopted by Supreme Court Order No. 17-8300-027, effective December 31, 2017.]
Plain-English Summary
This rule protects the people a wrongful death suit is meant to benefit. Once a personal representative is appointed under the Wrongful Death Act, the representative must give notice under Rule 1-004 to all known or reasonably ascertainable statutory beneficiaries. The notice identifies the representative and counsel, states the duty to act only in the beneficiaries’ best interests, asks beneficiaries to provide current contact information, and promises timely notice of trial settings, dismissals, settlements, and verdicts, of any proposed distribution before it occurs, and of any hearing on a distribution controversy.
Notices after the initial one follow Rule 1-005. As the committee commentary explains, the wrongful-death personal representative is distinct from a probate personal representative, and the representative must make reasonable efforts to identify beneficiaries such as grandchildren.
Frequently Asked Questions
Who must be notified in a wrongful death case?
All known or reasonably ascertainable statutory beneficiaries, notified by the personal representative under Rule 1-004 once the representative is appointed.
What must the wrongful death notice tell beneficiaries?
That the representative must act in their best interests, that they should provide current contact information, and that they will be notified of trial settings, dismissals, settlements, verdicts, and any proposed distribution before it occurs.