Intestate Succession in New Mexico

What happens if you die without a will? Learn about intestacy in New Mexico.

Updated by , Attorney

If you die without a will in New Mexico, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in New Mexico.

Which Assets Pass by Intestate Succession

Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

  • property you've transferred to a living trust
  • life insurance proceeds with a named beneficiary
  • funds in an IRA, 401(k), or other retirement account with a named beneficiary
  • securities held in a transfer-on-death account
  • real estate for which you have a transfer on death deed
  • vehicles for which you have a transfer on death registration
  • payable-on-death bank accounts, or
  • property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of or read about Avoiding Probate in New Mexico.

Who Gets What in New Mexico?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

If you die with:

here's what happens:

children but no spouse children inherit everything
spouse but no children spouse inherits everything
parents but no children or spouse parents inherit everything
siblings but no children, spouse, or parents siblings inherit everything
a spouse and children spouse inherits all of your community property and 1/4 of your separate property

children inherit 3/4 of your separate property

The Spouse's Share in New Mexico

In New Mexico, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property -- as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.

If you want to learn more about how community property works, read Separate and Community Property During Marriage: Who Owns What?

Your spouse will inherit your half of the community property. If you have separate property (many spouses mix everything together and don't have any separate property) your spouse will inherit all or a portion of it. The size of your spouse's share of your separate property depends on whether or not you leave living descendants. If you do, they and your spouse will share your separate property.

If you're concerned about this area of the law, see an experienced attorney for help.

Children's Shares in New Mexico

If you die without a will in New Mexico, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have and whether or not you are married. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of New Mexico must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.

  • Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. N.M. Stat. Ann. § 45-2-118.
  • Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
  • Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. N.M. Stat. Ann. § 45-2-119.
  • Posthumous children. Children conceived by you but not born before your death will receive a share as long as they survive for at least 120 hours after birth.
  • Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if you acknowledged your paternity or if your paternity is otherwise proved under New Mexico law. N.M. Stat. Ann. § 45-2-117.
  • Children born during your marriage. Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate.
  • Children conceived by assisted reproduction. If you are the husband or partner of the child's birth mother and you clearly functioned as the child's other parent within two years of the birth or intended to function as the child's other parent, the child will usually receive a share of your estate. N.M. Stat. Ann. § 45-2-120.
  • Children born to gestational carrier. If you have a child that was born to a gestational carrier, that child will receive a share of your estate if your parent-child relationship was established by court order or you clearly functioned as the child's parent within two years of the birth or intended to function as the child's parent, as proved under New Mexico law. N.M. Stat. Ann. § 45-2-121.
  • Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. N.M. Stat. Ann. § 45-2-106.

In case you want to read the law, New Mexico Statutes § § 45-2-115 to 45-2-122 cover parent-child relationships. These matters can be tricky, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.

Will the State Get Your Property?

If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before you do. (See New Mexico Statutes § 45-2-103.)

Other New Mexico Intestate Succession Rules

Here are a few other things to know about New Mexico intestacy laws.

  • Survivorship period. To inherit under New Mexico's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. N.M. Stat. Ann. § 45-2-104.
  • Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. N.M. Stat. Ann. § 45-2-107.
  • Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive as long as long as they survive for at least 120 hours after birth. N.M. Stat. Ann. § 45-2-104.
  • Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. N.M. Stat. Ann. § 45-2-111.
  • Advancements. If you gave property to your relative during your lifetime, the value of this gift is subtracted from your relative's share only if you wrote this down at the time of making the gift or your relative admits it in writing. N.M. Stat. Ann. § 45-2-109.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's No Will.

You can find New Mexico's intestate succession laws in Sections 45-2-101 to 45-2-114 of the New Mexico Statutes.

For more about estate planning, go to the Wills, Trusts & Probate section of

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