The following are excerpts from New Mexico’s intestacy laws. Please reference the full body of the Uniform Probate Act of the New Mexico Statutes at the New Mexico Compilation Commission’s site for any changes to those laws that may not be reflected below.
You can also open the New Mexico Intestacy Evaluator™ to see the distribution of a New Mexico intestate estate based upon unique family and financial circumstances.
45-1-101. Short title.
Chapter 45 NMSA 1978 may be cited as the “Uniform Probate Code”.
45-1-201. Definitions.
A. As used in the Uniform Probate Code, except as provided in Subsection B of this section and unless the context otherwise requires:
(6) “child” includes an individual entitled to take as a child pursuant to the Uniform Probate Code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild or any more remote descendant;
(9) “descendant” of an individual means all of the individual’s descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in the Uniform Probate Code;
(23) “heirs”, except as controlled by Section 45-2-711 NMSA 1978, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent;
(27) “issue” of an individual means the individual’s descendants;
(34) “parent” includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent pursuant to the Uniform Probate Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent;
(40) “property” includes both real and personal property or any right or interest therein and means anything that may be the subject of ownership;
45-2-101. Intestate estate.
A. Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in the Uniform Probate Code, except as modified by the decedent’s will.
B. A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.
45-2-102. Share of the spouse.
The intestate share of the surviving spouse is determined as follows:
A. as to separate property:
(1) if there is no surviving issue of the decedent, the entire intestate estate; or
(2) if there is surviving issue of the decedent, one-fourth of the intestate estate; and
B. as to community property, the one-half of the community property as to which the decedent could have exercised the power of testamentary disposition passes to the surviving spouse.
45-2-103. Share of heirs other than surviving spouse.
A. Any part of the intestate estate not passing to a decedent’s surviving spouse pursuant to Section 45-2-102 NMSA 1978, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent if only one survives;
(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
(4) if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, on both grandparents’ sides:
(a) half to the decedent’s grandparents on one side equally if both survive, or to the survivor of them if only one survives, or to the descendants of the decedent’s grandparents on this side or either of them if both are deceased, the descendants taking by representation; and
(b) half to the decedent’s grandparents on the other side equally if both survive, or to the survivor of them if only one survives, or to the descendants of the decedent’s grandparents or either of them if both are deceased, the descendants taking by representation; and
(5) if there is no surviving descendant parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on one side but not the other side, to the decedent’s relatives on the side with one or more surviving members in the manner described in Paragraph (4) of this subsection.
B. If there is no taker under Subsection A of this section, but the decedent has:
(1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or
(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.
C. For purposes of Subsection B of this section, the term “deceased spouse” means an individual to whom the decedent was married at the individual’s death, and does not include a spouse who was divorced from, or treated pursuant to Section 45-2-802 or Section 45-2-804 NMSA 1978 as divorced from, the decedent at the time of the decedent’s death.
45-2-104. Requirement of survival by one hundred twenty hours; individual in gestation.
A. For purposes of intestate succession and allowances, and except as otherwise provided in Subsection B of this section, the following rules apply:
(1) an individual born before a decedent’s death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent’s death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period; and
(2) an individual in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent’s death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
B. This section does not apply if its application would cause the estate to pass to the state under Section 45-2-105 NMSA 1978.
45-2-105. No taker.
If there is no taker under the provisions of Chapter 45, Article 2 NMSA 1978, the intestate estate passes to the state.
45-2-106. Representation.
A. As used in this section:
(1) “deceased descendant”, “deceased parent” or “deceased grandparent” means a descendant, parent or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent pursuant to Section 45-2-104 NMSA 1978; and
(2) “surviving descendant” means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent pursuant to Section 45-2-104 NMSA 1978.
B. If, pursuant to Section 45-2-103 NMSA 1978, a decedent’s intestate estate or a part thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are:
(1) surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants; and
(2) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
C. If, pursuant to Section 45-2-103 NMSA 1978, a decedent’s intestate estate or a part thereof passes “by representation” to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are:
(1) surviving descendants in the generation nearest the deceased parents or either of them or the deceased grandparents or either of them that contains one or more surviving descendants; and
(2) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
45-2-107. Kindred of half blood.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.