The following provides a guideline of how intestate succession works in New Mexico. New Mexico follows similar community and separate marital property laws as Texas does. The surviving spouse’s share will be determined based on the classification of decedent’s community and separate property.
Community Property
As to community property, all of decedent’s share of community property passes to the surviving spouse.[1] However, if the decedent passed away before June 12, 1959, then the surviving spouse retains their one-half interest in the property and receives only a one-fourth of the decedent’s share of the community property in addition.[2] This would leave the surviving spouse with a five-eighths interest in the community estate.[3] The last three-eighths of the community property is then equally divided among any surviving children.
From June 12, 1959 through July 1, 1973, the husband received the entire community property if the decedent died without a will and did not have to go through the probate process. Before the enactment of the Equal Rights Amendment, a wife could not dispose of her own community interest because it automatically passed to her husband without the necessity of administration at her death even if her will provided to the contrary.[4] The current law, enacted on July 1, 1973, provides that the community property shall pass to the surviving spouse subject to the deceased’s spouse power of testamentary disposition.[5]
Separate Property
The New Mexico statute provides that any property that is not passed to a decedent’s surviving spouse will be distributed in a specified order. First, if the decedent is survived by any children or descendants, then the surviving spouse receives one-fourth of the intestate estate and the remaining three-fourths will be distributed to the surviving children.[6] If there are no surviving children, the decedent’s separate property shall pass to the surviving spouse.[7] If the decedent is not survived by children or a spouse, then the recipient of the decedent’s estate is as follows: parents, siblings and their issue by representation, and then finally to grandparents.[8] If the decedent is not survived by children, spouse, parents, siblings, or nieces and nephews, then the estate is divided equally between the surviving grandparents.[9]
[1] N.M. Stat. Ann. § 45-2-102(B) (1975).
[2] N.M. Stat. Ann. § 45-2-102 (LexisNexis). (Although the language of former 29-1-13, 1953 Comp. (now 45-2-102 NMSA 1978) was phrased exclusively in terms of the male intestate, the case law indicated that the statute applied equally to a spouse of either sex who died intestate and without issue.).
[3] See Brown v. Brown, 53 N.M. 379, 208 P.2d 1081, 1949 N.M. LEXIS 710 (N.M. 1949).
[4] Thomas C. Turner Jr., A Primer on New Mexico Oil and Gas Law: State, Federal, and Fee Lands, 6 LSU J. of Energy L. & Resources 435, 452 (2018).
[5] Id.
[6] N.M. Stat. Ann. § 45-2-102(A) (1975); N.M. Stat. Ann. § 45-2-103 (1993).
[7] N.M. Stat. Ann. § 45-2-102(A) (1975).
[8] N.M. Stat. Ann. § 45-2-103(D) (1993).
[9] Id.