If you die without a valid will while residing in the State of New Mexico, you are said to have died "intestate." In order to determine who will receive your property if you die intestate, the State of New Mexico has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see New Mexico Intestacy Laws | Intestate Succession statutes.
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 [this chapter], 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.
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.
Share of heirs other than surviving spouse
Any part of the intestate estate not passing to the 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 designated below who survive the decedent:
A. to the decedent's descendants by representation;
B. if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
C. if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; and
D. 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, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation, and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
Requirement that heir survive decedent by one hundred twenty hours
An individual who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of family allowance, personal property allowance and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state pursuant to Section 45-2-105 NMSA 1978.
Other intestacy statutes
There are additional statutes pertaining to the distribution of intestate property in the State of New Mexico. To view those statutes, please click here.
[Reference - New Mexico's Intestacy laws].