N.M. Stat. » Chapter 40 — Domestic Affairs
New Mexico Statutes

N.M. Stat. § 40-3-1 (2026)

[Law applicable to property rights.]

✓ current as of May 2026
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The property rights of husband and wife are governed by this chapter unless there is a marriage settlement containing stipulations contrary thereto.

History: Laws 1907, ch. 37, § 21; Code 1915, § 2772; C.S. 1929, § 68-409; 1941 Comp., § 65-301; 1953 Comp., § 57-3-1.

ANNOTATIONS

Cross references. — For abolition of curtesy and dower, see 45-2-112 NMSA 1978.

Compiler's notes. — The 1915 Code compilers substituted the words "this chapter" for the words "this act." The latter referred to Laws 1907, ch. 37, the provisions of which are compiled as 40-2-1, 40-2-2, 40-2-4 to 40-2-9, and 40-3-1 to 40-3-3, NMSA 1978, while the former referred to Chapter 55 of the Code, the provisions of which are compiled as 40-4-3, 40-4-4, 40-4-6, 40-4-7, 40-4-20, 40-2-1 to 40-2-9 and 40-3-1 to 40-3-3 NMSA 1978.

Law of Spain and Mexico as basis for interpretation. — Since the civil law of Spain and Mexico served as the model for the statutory law of this state concerning the property rights of husband and wife, that law will be looked to as the basis for interpretation and definition. McDonald v. Senn, 1949-NMSC-020, 53 N.M. 198, 204 P.2d 990, 10 A.L.R.2d 966.

Dissimilarity of estate by entireties and community estate. — There is no similarity between a community estate and an estate by the entireties, except as to the husband and wife feature, and where it has been found necessary to segregate the husband's or wife's interest in community property the courts have found legal principles to justify it. McDonald v. Senn, 1949-NMSC-020, 53 N.M. 198, 204 P.2d 990, 10 A.L.R.2d 966.

Ambiguities in antenuptial contract resolved in wife's favor where drawn by husband. — Where antenuptial contract was drawn by the lawyer-husband and the wife had no independent legal advice, the latter relying upon the husband to correctly reduce their agreement to writing, ambiguities in the agreement should be resolved in her favor. Turley v. Turley, 1940-NMSC-043, 44 N.M. 382, 103 P.2d 113.

Overruling decision could retroactively alter property rights even after husband's death. — Where deficiencies were assessed because New Mexico law forbade a husband and wife from transmuting community property by mere agreement, and their separate property agreement was invalid, the rights of the parties did not become fixed under controlling New Mexico law, at the death of husband, and such rights could be retroactively altered by an overruling decision after his death, and the separate property agreement, under which the husband and wife held their property as tenants in common, was valid and operative from its inception. Massaglia v. Comm'r, 286 F.2d 258 (10th Cir. 1961) (decided under prior law). Law reviews. — For comment, "Community Property - Power of Testamentary Disposition - Inequality Between Spouses," see 7 Nat. Resources J. 645 (1967).

For symposium, "The Effects of an Equal Rights Amendment on the New Mexico System of Community Property: Problems of Characterization, Management and Control," see 3 N.M.L. Rev. 11 (1973).

For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M.L. Rev. 1 (1974).

For note, "Clouded Titles in Community Property States: New Mexico Takes a New Step," see 21 Nat. Resources J. 593 (1981).

For article, "Arbitration of Domestic Relations Disputes in New Mexico," see 16 N.M.L. Rev. 321 (1986).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Rights and remedies in respect of property accumulated by man and woman living together in illicit relations or under void marriage, 31 A.L.R.2d 1255.

Rights in wedding presents as between spouses, 75 A.L.R.2d 1365.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 5 A.L.R.4th 1310.

Forfeitability of property held in marital estate under uniform controlled substances act or similar statute, 84 A.L.R.4th 620.

Rights in respective of engagement and courtship presents when marriage does not ensue, 44 A.L.R.5th 1.

Notes of Decisions
Cited in 9 cases, 1991–2015 · leading case: Davis v. Davis, 638 So. 2d 1288 (Miss. 1994).
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Davis v. Davis, 638 So. 2d 1288 (Miss. 1994). “§ 50-20 (amended 1987); N.M. Stat. Ann. § 40-3-1 (1978) (distinguishing separate, community and quasi-community assets and liabilities); N.”
Griego v. Oliver, 2014 NMSC 003 (N.M. 2013). “, §§ 40-3-1, -12. 5 See, e.g., § 40-4-3. 6 Since the filing of United States v.”
State v. Parvilus, 2013 NMCA 25 (N.M. Ct. App. 2012). · cites it 2× “40-2-2 (1907) (explaining contract rights of husband and wife); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through 1973) (explaining execution and recording of marriage settlement and separation contracts); NMSA 1978, §§ 40-2-8 to -9 (1907) (describing the extent to which…”
State v. Parvilus, 2014 NMSC 028 (N.M. 2014). · cites it 2× “r the right of either to contract with others); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through 1973) (describing the execution and recording of marriage settlement and separation contracts); NMSA 1978, §§ 40-2-8 to -9 (1907) (explaining the extent to which husband and wife…”
Dean v. United Food Stores, Inc., 767 F. Supp. 236 (D.N.M. 1991). “Furthermore, New Mexico’s community property law only considers a spouse’s income as property of the other spouse for the purpose of distributing assets in the case of a divorce or legal separation, see §§ 40-3-1 to 40-3-17 NMSA (1989 Repl.), not to determine the equality of…”
State v. Parvilus, 2014 NMSC 28 (N.M. 2014). · cites it 2× “r the right of either to contract with others); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through 1973) (describing the execution and recording of marriage settlement and separation contracts); NMSA 1978, §§ 40-2-8 to -9 (1907) (explaining the extent to which husband and wife…”
Griego v. Oliver, 2014 NMSC 3 (N.M. 2013). “, §§ 40-3-1, -12. 5 See, e.g., § 40-4-3. 6 Since the filing of United States v.”
State v. Parvilus, 2013 NMCA 025 (N.M. Ct. App. 2013). · cites it 2× “40-2-2 (1907) (explaining contract rights of husband and wife); NMSA 1978, §§ 40-2-4 to -7 (1907, as amended through 1973) (explaining execution and recording of marriage settlement and separation contracts); NMSA 1978, §§ 40-2-8 to -9 (1907) (describing the extent to which…”
Charles Mandeville v. Deborah Mandeville (Tex. App. 2015). “Bom husband and wife have not been coerced, threatened, intimidated or influenced in any manner whatsoever that would clearly express or imply that this agreement hasnot been executed voluntarily andwithout duress.”
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