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New Mexico Intestate Succession: Who Inherits Without a Will
Support GuideNew Mexico11 min read

New Mexico Intestate Succession: Who Inherits Without a Will

Who inherits under New Mexico intestate succession: the spouse keeps all community property, and takes one-fourth of separate property when the decedent left children.

By Settled Editorial

When a New Mexico resident dies without a will, the state's intestate succession rules in the Uniform Probate Code decide who inherits. This guide answers one question: who gets what. New Mexico is a community property state, and that single fact changes the surviving-spouse math compared to most of the country. The short version: the surviving spouse keeps all of the community property, and how much of the separate property the spouse takes turns on whether the decedent left any children or other descendants.

This is the distribution side of intestacy under NMSA §45-2-101 through §45-2-114. For the process of opening the estate, naming a personal representative, and choosing between the county Probate Court and the District Court, read the New Mexico probate guide. That guide covers how administration works; this one covers who inherits. A valid will overrides these rules, so if you are deciding whether to make one, start with New Mexico will requirements.

What Intestate Succession Covers

Dying without a will is called dying "intestate." When that happens, no will names the heirs, so New Mexico statute does. The rules sit in Chapter 45, Article 2 of the New Mexico Statutes Annotated, the state's version of the Uniform Probate Code, and they run in a fixed order of family classes.

Intestate succession reaches only probate property, meaning assets that pass through the estate. Assets with a named beneficiary, a payable-on-death or transfer-on-death tag, survivorship rights, or trust ownership pass outside intestacy and do not follow these rules. So a life insurance policy with a named beneficiary, or a joint account with survivorship, goes to that person no matter what the intestacy statute says. Many New Mexico couples also hold their home and accounts as community property, which often passes to the survivor outside full probate. To see which assets skip probate, read how to avoid probate in New Mexico.

One New Mexico distinction shapes everything below. Property gets sorted into two buckets before any share is calculated.

Community Property and Separate Property

New Mexico splits a married person's property into two kinds, and intestacy treats each one differently.

  • Community property is generally what the spouses acquired during the marriage through the work or earnings of either spouse. Each spouse already owns half.
  • Separate property is generally what a spouse owned before marriage, or received during marriage by gift or inheritance. It belongs to that spouse alone.

Here is why the split matters. Under NMSA §45-2-102(B), the decedent's one-half of the community property passes to the surviving spouse. The surviving spouse already owns the other half. So when a married New Mexican dies intestate, the surviving spouse ends up with all of the community property, whether or not the couple had children. The separate-property share is the part that can change, and the next section walks through it.

The Surviving Spouse Share

The spouse's share under NMSA §45-2-102 has two halves: a community-property rule and a separate-property rule.

The community-property rule does not change. The decedent's half of the community property always passes to the surviving spouse under §45-2-102(B), so the survivor holds all of it.

The separate-property rule turns on one fact: did the decedent leave any surviving descendants?

Family situationCommunity property to spouseSeparate property to spouse
No surviving descendantsAll of itThe entire separate estate
One or more surviving descendantsAll of itOne-fourth

So if the decedent had no children or other descendants, the surviving spouse takes everything: all community property and all separate property. If the decedent did leave descendants, the spouse still takes all of the community property, plus one-fourth of the separate property, and the other three-fourths of the separate property passes to the descendants. (Source: NMSA §45-2-102.)

Two points to flag here. New Mexico does not use the blended-family test that some states apply, where the spouse's share drops only when the decedent had a child from outside the marriage. In New Mexico, the separate-property share turns simply on whether the decedent left any surviving descendants at all. And the community-property half always goes to the spouse regardless.

When There Is No Surviving Spouse

With no surviving spouse, or for the separate property that does not pass to a spouse, the estate descends through a fixed order of classes under NMSA §45-2-103. Each class must be empty before the next inherits.

  1. Descendants. Children and their descendants take the whole intestate estate, by representation. A deceased child's share passes down that child's line.
  2. Parents. With no descendants, the estate passes to the decedent's parents equally if both survive, or to the surviving parent.
  3. Descendants of parents. With no descendants and no surviving parent, the estate passes to the decedent's siblings and their descendants by representation.
  4. Grandparents and their descendants. With none of the above, the estate splits in half. One-half passes to the paternal grandparents' side and one-half to the maternal grandparents' side, running through grandparents, aunts and uncles, and cousins on each side by representation.

If a class has living members, the search stops there. The estate does not skip a living parent to reach a sibling, and it does not skip a living sibling to reach a cousin.

There is also a rare fallback. Under NMSA §45-2-103(B) and (C), if no relative in the classes above survives, the estate can pass to the surviving descendants of a deceased spouse the decedent was married to. This step comes into play only when there is no surviving kin at all.

Representation: How a Deceased Heir's Share Passes Down

When an heir who would have inherited dies before the decedent but leaves descendants, those descendants step into that heir's place. New Mexico calls this representation, and it works per capita at each generation under NMSA §45-2-106.

Let's break it down. The estate is divided at the nearest generation that has a living taker. Each living person in that generation takes one share. The shares that would have gone to deceased people in that generation are pooled and then divided among the next generation down. The result keeps members of the same generation on equal footing.

A worked example makes this concrete. Say a decedent with no spouse had three children, and one child died first leaving two children of their own. The estate divides into three equal shares at the children's generation. The two living children each take one-third. The deceased child's one-third passes to that child's two children, who split it, so each grandchild takes one-sixth.

Half-Blood Relatives Inherit the Same Share

When the heirs are collateral relatives, such as siblings, aunts, uncles, or cousins, you may wonder whether a half-blood relative inherits less. In New Mexico, they do not.

Under NMSA §45-2-107, relatives of the half blood inherit the same share they would inherit if they were of the whole blood. So a half-sibling who shares one parent with the decedent takes the same share as a full sibling in the same position. New Mexico does not cut a half-blood relative's share, and it has no separate ancestral-property rule. This differs from some states that give half-blood collaterals only half a share, so do not carry that rule into a New Mexico estate. (Source: NMSA §45-2-107.)

The 120-Hour Survival Rule and Children in Gestation

Two timing rules can change who counts as an heir.

Survival by 120 hours. Under NMSA §45-2-104, an heir must survive the decedent by 120 hours, which is five days, to inherit. If survival by that period is not shown by clear and convincing evidence, the law treats the person as having predeceased the decedent. This rule keeps property from passing through two estates in quick succession.

Children in gestation. The same statute treats a child already conceived at the decedent's death as living at that death, as long as the child lives at least 120 hours after birth. So a child in utero when the decedent dies is counted as an heir.

Adopted Children, Stepchildren, and the Slayer Rule

A few more rules decide who is and is not an heir.

Adopted children. Under New Mexico's parent-child provisions, an adopted child is generally treated as the child of the adopting parents for intestacy, with limited statutory exceptions. Confirm the current parent-child rules for the specific family.

Stepchildren. Stepchildren are not intestate heirs in New Mexico unless they were legally adopted. A close relationship does not create an inheritance right on its own.

The slayer rule. Under NMSA §45-2-803, a person who feloniously and intentionally kills the decedent forfeits any intestate share, allowance, or nonprobate benefit and is treated as having predeceased the decedent.

What Happens If No Heir Exists

New Mexico's order of inheritance reaches a wide circle of relatives, so an estate rarely has no heir. If no taker can be found under any provision of Chapter 45, Article 2, the intestate estate passes to the State of New Mexico under NMSA §45-2-105. This is the last resort, not the default. Dying without a will does not send a New Mexico estate to the state in the ordinary case. It sends the estate down the family tree first.

How the Pieces Fit Together

Use this sequence to read a New Mexico intestate distribution:

  1. Separate probate property from assets that pass by beneficiary, survivorship, or trust. Only probate property follows these rules.
  2. Sort the probate property into community property and separate property.
  3. Give the surviving spouse all of the community property under §45-2-102(B).
  4. Apply the separate-property spouse share under §45-2-102(A): the entire separate estate if there are no descendants, or one-fourth if there are descendants.
  5. For separate property not passing to a spouse, run the class order: descendants, then parents, then descendants of parents, then the paternal and maternal grandparent sides.
  6. Apply representation per capita at each generation for any deceased heir who left descendants, and remember half-blood relatives take a full share.
  7. Check the 120-hour survival rule and any child in gestation before treating an heir list as final.

If the probate estate is small, the family may settle it through New Mexico's small-estate paths rather than full administration, though the same shares decide who collects. The New Mexico small estate affidavit guide covers when that route is available. Whoever serves still follows the personal representative duties that govern gathering assets, paying debts, and distributing the shares.

When to Get Help

Some intestate distributions are simple to map from the statute. Others need a licensed New Mexico attorney, especially when:

  • property is hard to classify as community or separate
  • the decedent left descendants who are not also the surviving spouse's
  • a deceased heir's branch raises a representation question
  • an heir cannot be located or the family tree is unclear
  • adoption, parentage, or a child in gestation affects who counts as an heir
  • real property must be sold to pay debts

This guide helps you organize the source-backed shares and the right questions. A lawyer can advise on rights, disputes, and signing decisions for a specific estate.

This guide is general information about New Mexico estates. It is not legal advice. Confirm anything that affects your situation with the county Probate Court, the District Court, or a licensed New Mexico attorney.

Sources

Information current as of June 22, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in New Mexico can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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