EXEMPT PROPERTY AND ALLOWANCES

NMSA 1978 ch. 45, art. 2, pt. 4

in effect

NMSA 1978, § 45-2-401 Applicable law

45-2-401. Applicable law Chapter 45, Article 2, Part 4 NMSA 1978 applies to the estate of a decedent who dies domiciled in this state. Rights to family allowance and personal property allowance for a decedent who dies not domiciled in this state are governed by the laws of the decedent's domicile at death. 1953 Comp., § 32A-2-401, enacted by Laws 1975, ch. 257, § 2-401; repealed and reenacted by Laws 1993, ch. 174, § 19.

NMSA 1978, § 45-2-402 Family allowance

45-2-402. Family allowance A decedent's surviving spouse is entitled to a family allowance of thirty thousand dollars ($30,000). If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a family allowance amounting to thirty thousand dollars ($30,000) divided by the number of minor and dependent children of the decedent. The family allowance is exempt from and has priority over all claims against the estate. Family allowance is in addition to any share passing to the surviving spouse or minor or dependent children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument. 1953 Comp., § 32A-2-402, enacted by Laws 1975, ch. 257, § 2-402; repealed and reenacted by Laws 1993, ch. 174, § 20; 1995, ch. 210, § 7.

NMSA 1978, § 45-2-403 Personal property allowance

45-2-403. Personal property allowance In addition to the family allowance, the decedent's surviving spouse is entitled from the estate to a value, not exceeding fifteen thousand dollars ($15,000) in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, the decedent's children who are devisees under the will, who are entitled to a share of the estate pursuant to Section 45-2-302 NMSA 1978 or, if there is no will, who are intestate heirs are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests plus that of other exempt property is less than fifteen thousand dollars ($15,000) or if there is not fifteen thousand dollars ($15,000) worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the fifteen thousand dollar ($15,000) value. Rights to specific property for the personal property allowance and assets needed to make up a deficiency in the property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument. 1978 Comp., § 45-2-403, enacted by Laws 1993, ch. 174, § 21; 1995, ch. 210, § 8; 1997, ch. 95, § 1; 1999, ch. 79, § 1; 2011, ch. 124, § 21.

NMSA 1978, § 45-2-404 Reserved

NMSA 1978, § 45-2-405 Source, determination and documentation

45-2-405. Source, determination and documentation If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to family allowance or personal property allowance. Subject to this restriction, the surviving spouse, guardians of minor children or children who are adults may select property of the estate as family allowance and personal property allowance. The personal representative may make those selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as family allowance or personal property allowance. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment or failure to act under this section may petition the court for appropriate relief, which may include a family allowance or personal property allowance other than that which the personal representative determined or could have determined. 1953 Comp., § 32A-2-405, enacted by Laws 1975, ch. 257, § 2-405; repealed and reenacted by Laws 1993, ch. 174, § 23.

NMSA 1978, § 45-2-406 Modification of exemptions

45-2-406. Modification of exemptions With respect to the estate of a decedent, the allowances granted pursuant to Sections 45-2-402 and 45-2-403 NMSA 1978 are in lieu of the exemptions provided in Sections 42-10-1, 42-10-2, 42-10-9 and 42-10-10 NMSA 1978. 1978 Comp., § 45-2-406, enacted by Laws 1993, ch. 174, § 24; 1995, ch. 210, § 9.

NMSA 1978, § 45-2-407 Waiver of rights

45-2-407. Waiver of rights A. The rights of the surviving spouse to family allowance and personal property allowance, or either of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the surviving spouse. B. A surviving spouse's waiver is not enforceable if the surviving spouse proves that: (1) the surviving spouse did not execute the waiver voluntarily; or (2) the waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse: (a) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent. C. An issue of unconscionability or voluntariness of a waiver is for decision by the court as a matter of law. D. Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of family allowance and personal property allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to each from the other by intestate succession or by virtue of any will executed before the waiver or property settlement. 1978 Comp., § 45-2-407, enacted by Laws 1995, ch. 210, § 10.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18546/index.doFetched: 10/20/2026