New Mexico Exempt Property: What Surviving Spouses Can Claim

When someone dies in New Mexico, a surviving spouse or their children can set aside a defined slice of the household property before the estate pays general creditors or distributes anything under the will. In New Mexico this protection is called the personal property allowance, and it is capped at $15,000 in value over any liens on the items. This is the piece people usually mean when they search for New Mexico exempt property.

This guide focuses on that $15,000 personal property allowance: what qualifies, who can claim it, how it ranks against creditors, and how to set it apart. For the full picture of a spouse's protections, including community property and the separate $30,000 family allowance, see the New Mexico surviving spouse rights guide. This is general information, not legal advice.

What Is New Mexico Exempt Property (Personal Property Allowance)?

New Mexico's Uniform Probate Code gives a surviving spouse or the decedent's children the right to claim up to $15,000 of personal property from the estate under NMSA 1978, Section 45-2-403. The statute calls this the personal property allowance. It is the New Mexico equivalent of what many other states label "exempt property."

Lawmakers created this protection so that a family is not stripped of basic household belongings and transportation just because the estate owes debts or the will directs the property elsewhere. The allowance is measured by value, not by a fixed list of items, and it counts the value in excess of any security interests on the property. If a claimed item secures a loan, only the equity above that loan counts toward the $15,000.

The $15,000 figure is set by statute and is not adjusted for inflation, so it changes only when the New Mexico Legislature amends it.

What Qualifies

The personal property allowance covers everyday household and personal property, up to $15,000 in value over any liens. Qualifying property generally includes:

• Household furniture
• Automobiles
• Furnishings
• Appliances
• Personal effects

The value that counts is the equity in these items, meaning fair market value minus any security interest such as a car loan or financed-furniture balance.

The make-up rule. If the qualifying household furniture, automobiles, furnishings, appliances, and personal effects are worth less than $15,000, the surviving spouse or children may claim other assets of the estate to make up the difference, so the allowance reaches its full $15,000 value (NMSA 1978, Section 45-2-403). One ordering rule applies here: the right to reach other assets for a shortfall gives way as needed so the $30,000 family allowance can be paid first.

Who Can Claim It

New Mexico sets a clear order for who may claim the personal property allowance.

Surviving spouse first. A surviving spouse has the first right to claim the $15,000 personal property allowance. The spouse can claim it regardless of what the will says and in addition to any share taken by will or by intestate succession, unless the decedent provided otherwise in the will or another governing instrument.

Then the children. If there is no surviving spouse, the decedent's children who are entitled to a share take the $15,000 personal property allowance jointly (NMSA 1978, Section 45-2-403).

To take as a surviving spouse, the spouse must survive the decedent by 120 hours, which is five days, under NMSA 1978, Section 45-2-104. A spouse who does not meet that survival period is treated as having predeceased the decedent.

How It Differs From the Family Allowance ($30,000) and Community Property

People often blur three different protections together. They are separate, and in New Mexico they stack rather than replace one another.

The family allowance is a separate $30,000 protected amount under NMSA 1978, Section 45-2-402, paid ahead of most estate claims for the spouse's support. It is not the same money as the personal property allowance, and a surviving spouse can receive both.

Community property is different again. New Mexico is a community property state, so a surviving spouse already owns one-half of the community estate by ownership, before any allowance is calculated. The allowances are on top of that ownership. For how these fit together with the intestate separate-property share and the homestead, see the New Mexico surviving spouse rights guide.

Priority Over Creditors

The personal property allowance is protected. Under NMSA 1978, Section 45-2-403, it is exempt from and has priority over all claims against the estate, so the spouse or children receive it ahead of the estate's general creditors.

Protected from ordinary estate claims such as:

• Credit card balances
• Medical bills
• Personal loans
• Other unsecured creditor claims

Not protected from a valid security interest on a specific item. The allowance counts value only in excess of security interests, so a car loan or a financed-appliance balance stays attached to that item. If a claimed vehicle has an outstanding loan, the spouse takes it subject to the loan, and only the equity above the loan counts toward the $15,000.

One internal ordering rule is worth repeating: if the estate lacks enough qualifying property to fill the allowance, the right to reach other assets for the shortfall abates as needed so the $30,000 family allowance can be paid first.

How to Claim It

The personal property allowance is handled inside estate administration rather than through a separate lawsuit.

Step 1: Identify qualifying property. List the household furniture, automobiles, furnishings, appliances, and personal effects, with an approximate fair market value for each and any loan or lien attached.

Step 2: Value the equity. Use resale or fair market value, then subtract any security interest. The net equity is what counts toward the $15,000 cap.

Step 3: Set the property apart. In most estates the personal representative selects and sets apart the qualifying property for the surviving spouse or children as part of administration. NMSA 1978, Section 45-2-405 governs the source, determination, and documentation of the allowances.

Step 4: Ask the court if there is a dispute. New Mexico runs probate through two courts: the elected county Probate Court handles informal, uncontested administration, and the District Court handles formal, supervised, or contested matters under NMSA 1978, Section 45-1-302. If an interested person disputes the claim or the estate is complex, the matter can be presented to the appropriate court for determination.

Because the allowance is worked out during administration, confirm any specific timing with the personal representative or the court clerk before relying on a deadline.

Waiving the Allowance

The personal property allowance can be given up in advance or simply not claimed.

By marital agreement. A valid prenuptial or postnuptial agreement can waive or modify the statutory allowances. A waiver generally must be in writing and signed voluntarily, and fair financial disclosure supports its validity. Each spouse should review a proposed waiver carefully before signing.

By choice. A surviving spouse who does not need the property may simply decline to claim the allowance, so the items pass under the will or intestacy to children or other heirs. Claiming is a right, not an obligation.

Keep in mind that a person who feloniously and intentionally kills the decedent forfeits the allowance and other benefits and is treated as having predeceased the decedent under NMSA 1978, Section 45-2-803, and divorce or annulment generally ends a former spouse's standing to claim.

Frequently Asked Questions

How much is the New Mexico personal property allowance?

It is $15,000 in value over any security interests on the property, under NMSA 1978, Section 45-2-403. That amount is set by statute and is not indexed to inflation, so it changes only when the Legislature amends it.

Is the $15,000 personal property allowance the same as the $30,000 family allowance?

No. They are two separate protections. The personal property allowance ($15,000) sets aside household property under Section 45-2-403, while the family allowance ($30,000) is a separate protected amount for support under Section 45-2-402. A surviving spouse can claim both.

Can creditors take the exempt personal property?

Generally not. The allowance has priority over all claims against the estate, so it comes ahead of unsecured creditors. The exception is a valid security interest on a specific item, such as a car loan, which stays attached because only equity above the loan counts toward the $15,000.

Can the children claim it if a spouse is still living?

No. The surviving spouse has the first right to the personal property allowance. The decedent's children who are entitled to a share take the $15,000 jointly only when there is no surviving spouse.

Related Guides

• New Mexico Surviving Spouse Rights
• New Mexico Intestate Succession
• New Mexico Probate Guide
• New Mexico Executor Duties
• New Mexico Small Estate Affidavit

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Sources

• Title: NMSA 1978, Section 45-2-403, Personal property allowance. Publisher: New Mexico Statutes (LawServer). Publication Date: current official code, accessed 2026-06-22. URL: https://www.lawserver.com/law/state/new-mexico/nm-statutes/new_mexico_statutes_45-2-403
• Title: NMSA 1978, Section 45-2-402, Family allowance. Publisher: New Mexico Statutes (LawServer). Publication Date: current official code, accessed 2026-06-22. URL: https://www.lawserver.com/law/state/new-mexico/nm-statutes/new_mexico_statutes_45-2-402
• Title: NMSA 1978, Section 45-2-405, Source, determination and documentation of allowances. Publisher: New Mexico Compilation Commission (NM OneSource, official NMSA 1978). Publication Date: current official code, accessed 2026-06-22. URL: https://nmonesource.com/
• Title: NMSA 1978, Section 45-2-104, Requirement of survival by 120 hours. Publisher: New Mexico Statutes (Justia). Publication Date: 2025 official code, accessed 2026-06-22. URL: https://law.justia.com/codes/new-mexico/chapter-45/article-2/part-1/subpart-1/section-45-2-104/
• Title: NMSA 1978, Section 45-1-302, Subject matter jurisdiction of district and probate courts. Publisher: New Mexico Statutes (Justia). Publication Date: 2025 official code, accessed 2026-06-22. URL: https://law.justia.com/codes/new-mexico/chapter-45/article-1/part-3/section-45-1-302/

This guide is general information about New Mexico exempt property and the personal property allowance. The value of qualifying property, liens, and family circumstances vary from estate to estate, so confirm the details with your county Probate Court, the District Court clerk, or a licensed New Mexico attorney before you act. It is not legal advice.