Next of kin under New Mexico intestate inheritance law include:
- Surviving spouse
- Children
- Parents
- Siblings
- Grandparents and descendants
- Descendants of deceased spouse
What Next Of Kin Inherit Under New Mexico Law?
The status as next of kin or heir at law comes into play when someone dies without a will (intestate). If a decedent dies with a valid will, then the will governs how the estate is distributed. If there is no valid will, or parts of the will are invalid, then New Mexico law steps in to determine the next of kin or heirs at law that inherit the decedent’s estate.
The next of kin that inherit from a decedent’s intestate estate depend on the other people that survived the decedent.
Survivors of the Decedent | Share of Intestate Estate |
Spouse only | – Spouse inherits entire estate |
Spouse and children | – Spouse inherits all community property – Spouse inherits ¼ of separate property – Children inherit ¾ of separate property |
Children only (including descendants of deceased children) | – Children inherit entire estate |
Parents, no spouse or children | – Parents inherit entire estate |
Siblings only, no spouse, children, or parents | – Siblings inherit entire estate |
Grandparents only (or descendants of grandparents) | – Paternal grandparents inherit ½ – Maternal grandparents inherit other ½ |
Descendants of deceased spouse | – Descendants of deceased spouse inherit estate – If there is more than one deceased spouse with descendants, equal shares of the estate pass to each set of descendants by representation |
Absolutely none of the above | – New Mexico inherits the estate |
New Mexico’s intestate succession laws can be found in N.M. Stat. § 45-2-102 and N.M. Stat. § 45-2-103.
What Does “By Representation” Mean Under New Mexico Intestate Succession Law?
New Mexico’s intestate succession scheme at times provides that a decedent’s intestate estate or a part thereof passes “by representation.” When a decedent’s estate passes by representation to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are:
(1) surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants; and
(2) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
This law can be found in N.M. Stat. § 45-2-106, which also explains how an estate passes by representation to descendants of a decedent’s deceased parents or grandparents.
What Do Next Of Kin Inherit In New Mexico?
The next of kin heirs at law that are in the position to inherit from a New Mexico decedent’s intestate estate will inherit probate assets. Probate assets are assets that were not designated to pass automatically to someone else upon the decedent’s death. For example, if decedent had a bank account with no designated pay-on-death beneficiaries and no joint owner, the account would be a probate asset.
Assets that are generally not probate assets are bank accounts with pay-on-death beneficiary designations, life insurance policies, and assets in a revocable trust. See Probate and Non-Probate Assets Chart.
New Mexico Has A Survivorship Requirement
For purposes of a next of kin heir at law inheriting by intestate succession, New Mexico law requires that an individual survive the decedent by one hundred twenty hours. N.M. Stat. § 45-2-104.
Does The State Of New Mexico Inherit A Decedent’s Property?
It is very, very uncommon for a decedent’s property to escheat to the State of New Mexico, because the decedent would have to be survived by absolutely no next of kin heirs at law. New Mexico law goes out of its way to include many people in the list of possible heirs to avoid the situation where a decedent’s property goes to the state.
