Surviving Spouse Rights New Mexico

Surviving spouses have important rights and benefits under New Mexico law, including:

  • Intestate Rights
  • Community Property
  • Family Allowance
  • Exempt Personal Property

New Mexico is a community property state.  Community property is property acquired while the surviving spouse and decedent were married.

Surviving Spouse Rights In New Mexico If No Valid Will – Intestacy

When someone dies without a will in New Mexico, they have died intestate.  The widow has rights in decedent’s community property and separate property.  NM Stat 45-2-102.

Surviving Spouse Receives All of Decedent’s Interest In Community Property

When a spouse dies intestate in New Mexico, the surviving spouse receives the decedent’s interest in the community property.

Surviving Spouse’s Share of Decedent’s Separate Property

Separate property is treated differently than community property.  The surviving spouse’s share of Decedent’s separate property in an intestate estate depends on the other survivors of the deceased spouse.  Many times there will be no separate property, because everything was owned together.  However, if the decedent had separate property (such as gifts, inheritances, or property owned prior to the marriage) the surviving spouse’s share is as follows:

  • Surviving Spouse and No Children:  If the decedent had no children, then the surviving spouse has the rights to all of decedent’s separate property.
  • Surviving Spouse and Children:  If the decedent had children, the surviving spouse inherits 1/4 of the separate property.


Surviving Spouse Rights In New Mexico If A Valid Will

When a spouse dies with a valid will, the terms of the will control the distribution of assets.  The decedent is only able to direct the disposition of decedent’s 1/2 of community property in a will.  There is no elective share in New Mexico.

Surviving Spouse Allowances And Exemptions

A surviving spouse is also entitled to certain rights and exemptions under New Mexico law.

The surviving spouse is entitled to a family allowance of $30,000. NM Stat. 45-2-402.

The surviving spouse is also entitled to exempt personal property up to $15,000.  NM Stat. 45-2-403.

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