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New Mexico Probate and Estate Tax Laws

Probate is the legal process by which a person's property is distributed when he or she dies. During probate, the deceased's property is gathered, any applicable debts and taxes are paid, and then the remaining estate is distributed to the deceased's heirs. But how does the court know who should receive what?

If the deceased dies testate (with a valid will) then the estate will be distributed according to the will's provisions. However, if the deceased dies intestate (without a valid will), or if the will doesn't dispose of the entire estate, then any part of the estate that isn't disposed of by the will passes by the state's laws of intestate succession. New Mexico's laws of intestate succession are briefly outlined in the chart below.

Code Section

New Mexico Statute section 45-2-102 & 45-2-103: Intestate Succession

What Does the Surviving Spouse Receive?


The surviving spouse receives all of deceased's separate property if the deceased doesn't have any children. However, if the deceased does have children, then the surviving spouse receives 1/4th of the deceased's separate property.

Additionally, the surviving spouse receives the deceased's half of the couple's community property (whether or not the deceased has children).

What Do the Other Heirs Receive?


Any part of the deceased's estate that doesn't pass to the surviving spouse (or the entire estate if the deceased doesn't leave behind a spouse) passes in the following order until someone is alive to inherit:
  • To the deceased's descendants
  • To the deceased's parents
  • To the deceased's grandparents
  • To a deceased spouse's descendants

Parents Barred from Inheriting

In some situations, parents in New Mexico are prohibited from inheriting from their intestate child. For instance, a parent is barred from inheriting from or through their child if:

  • The parent's parental rights were terminated (and the parent-child relationship wasn't judicially reestablished), or
  • The child died before turning 18 years old and there is clear and convincing evidence that the parent's parental rights could have been terminated due to nonsupport, abandonment, abuse, neglect, or other similar actions or inactions

Estate Tax

The federal and state governments can impose an estate tax on property that is transferred at death. New Mexico previously collected an estate tax, however, the tax was linked to federal tax laws and was phased out on January 1st, 2005 due to changes in the Federal Tax Code. However, it should be noted that estates consisting of $5,430,000 or more in 2015 are still required to pay the federal estate tax.

Additional Resources

State laws change frequently. For case specific information about New Mexico's probate and estate tax laws contact a local probate and estate administration lawyer.

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