N.M. Stat. § 40-3-12 (2026)

separate property where property acquired by married woman prior
to July 1, 1973.
   A. Property acquired during marriage by either husband or wife, or both, is
presumed to be community property.

    B. Property or any interest therein acquired during marriage by a woman by an
instrument in writing, in her name alone, or in her name and the name of another person
not her husband, is presumed to be the separate property of the married woman if the
instrument in writing was delivered and accepted prior to July 1, 1973. The date of
execution or, in the absence of a date of execution, the date of acknowledgment, is
presumed to be the date upon which delivery and acceptance occurred.

   C. The presumptions contained in Subsection B of this section are conclusive in
favor of any person dealing in good faith and for valuable consideration with a married
woman or her legal representative or successor in interest.

History: 1953 Comp., § 57-4A-6, enacted by Laws 1973, ch. 320, § 7.

                                     ANNOTATIONS

                          I.     GENERAL CONSIDERATION.

Property takes status as community or separate at time and by manner of
acquisition. — Property acquired in New Mexico takes its status as community or
separate property at the time and by the manner of its acquisition; and if a part of the
purchase money is later paid by other funds than those of the owner of the property,
whether of the community or an individual spouse, the owner is indebted to the source
of such funds in that amount, but such payment does not affect the title of the
purchaser. Shanafelt v. Holloman, 1956-NMSC-047, 61 N.M. 147, 296 P.2d 752.

Judicial estoppel did not apply to prevent spouse from claiming community
property where it was not established that she successfully argued or assumed
property was separate before the district court. — Where husband died intestate,
survived by his wife, and where wife, appointed as sole personal representative of
husband's estate, claimed a community lien against a tract of husband's land (west
tract) due to improvements made to the property while wife was married to husband,
and where wife also exercised her claim for a spousal allowance and a personal
property allowance against the west tract, and where petitioner objected to any
allowances against any property identified as separate property, and where wife passed
away prior to a trial scheduled to resolve the issues, and where respondent, the
personal representative of wife's estate, filed for partial summary judgment to establish
that the west tract was held by husband and wife as community property, and where
petitioner argued that the district court should judicially estop respondent from claiming
the west tract as community property because wife took the position that the west tract
was separate property earlier in the probate proceedings, the district court did not abuse
its discretion when declining to apply judicial estoppel, because it was not established
that respondent or wife successfully argued or assumed that the west tract was
separate property in a motion or at a hearing before the district court where the nature
of the property was at issue. In re Estate of Kuchan, 2024-NMCA-032.

Proof of transmutation. — Transmutation is a general term used to describe
arrangements between spouses to convert property from separate property to
community property and vice versa. While transmutation is recognized, the party
alleging the transmutation must establish the transmutation of property to community
property by clear, strong and convincing proof. Allen v. Allen, 1982-NMSC-118, 98 N.M.
652, 651 P.2d 1296.

Wife was indispensable party in action brought by husband to quiet title to realty
deeded to both husband and wife. Brown v. Gurley, 1954-NMSC-025, 58 N.M. 153, 267
P.2d 134.

Deed with no description of marital status created tenancy in common. — A
quitclaim deed conveying land to a husband and wife by name and address but with no
description of marital status created a tenancy in common; the address appearing after
their names was not sufficient to express any other intention. U.S. Fid. & Guar. Co. v.
Chavez, 126 F. Supp. 227 (D.N.M. 1954).

Admissibility of parol evidence to show intent. — Parol evidence was properly
admitted, not to alter certain deeds, but rather to establish the true consideration behind
the deeds, which, in turn, established the lack of intention of the grantors to make a gift
to the wife. Sanchez v. Sanchez, 1987-NMCA-143, 106 N.M. 648, 748 P.2d 21, cert.
denied, 106 N.M. 627, 747 P.2d 922.

Requirements for overcoming presumption of fraud in community property
conveyance. — The burden was on husband's heirs to overcome the presumption of
fraud in action to nullify conveyance of community property for fraud. They were
required to show: (a) payment of an adequate consideration; (b) full disclosure to the
wife as to her rights and the value and extent of the community property; and (c) that
the wife had competent and independent advice in conferring the benefits upon her
husband. Trujillo v. Padilla, 1968-NMSC-090, 79 N.M. 245, 442 P.2d 203.

Burden upon contestant asserting separate character. — The party seeking to rebut
the presumption of community property has the burden of introducing factual evidence
that the disputed property meets a criterion of separate property as defined in 40-3-8
NMSA 1978. C & L Lumber & Supply, Inc. v. Texas Am. Bank/Galeria, 1990-NMSC-
056, 110 N.M. 291, 795 P.2d 502.

Property acquired during marriage is presumed to be community property and if
community funds are used to purchase the separate property of either spouse, such
property becomes community property. Marquez v. Marquez, 1973-NMSC-084, 85 N.M.
470, 513 P.2d 713.

Presumption. — In New Mexico, there is a clearly stated presumption of community
property. Swink v. Sunwest Bank (In re Fingado), 113 Bankr. 37 (Bankr. D.N.M. 1990).

The presumption of community property arises from the naked fact that it was acquired
during marriage. Hollingsworth v. Hicks, 1953-NMSC-045, 57 N.M. 336, 258 P.2d 724.

Property acquired during marriage by either spouse is presumed to be community
property. The recitation in a deed not signed by both spouses that the property is the
"sole and separate property" of a married man does not affect this presumption. C & L
Lumber & Supply, Inc. v. Texas Am. Bank/Galeria, 1990-NMSC-056, 110 N.M. 291, 795
P.2d 502.

Property acquired by either or both spouses during their marriage is presumptively
community property. The presumption of community property, however, is subject to
being rebutted by a preponderance of the evidence. Stroshine v. Stroshine, 1982-
NMSC-113, 98 N.M. 742, 652 P.2d 1193.

Presumption part of Spanish property law. — The presumption that all property
acquired after marriage is community property was part of Spanish community property
law and was recognized as an element of the community property system in this state
prior to the time of its statutory pronouncement by Laws 1907, ch. 37, § 10 (now
repealed and replaced by what are now 40-3-8 and 40-3-12(A) NMSA 1978). Campbell
v. Campbell, 1957-NMSC-001, 62 N.M. 330, 310 P.2d 266.
                II.    PRESUMPTION OF COMMUNITY PROPERTY.

Division of insurance proceeds where claim pending at divorce. — Where premium
on disability insurance proceeds was paid from husband's earnings during marriage,
insurance proceeds on claim pending against insurance company at time of divorce
were community property. Douglas v. Douglas, 1984-NMCA-071, 101 N.M. 570, 686
P.2d 260.

Insurance proceeds on policy paid for with community funds. — Following divorce
proceedings, where wife filed a motion to impose a constructive trust on insurance
proceeds that husband received after filing a bad faith claim against his insurance
company for denying a property damage claim related to his truck, arguing that the
insurance proceeds were community property because the truck was community
property and the insurance policy covering the truck was paid for with community funds,
and where husband argued that the settlement proceeds were not a community asset
because the settlement occurred after the dissolution of marriage and that wife was not
entitled to any of the insurance proceeds because wife’s actions played a significant
part in the decision by the insurance company to wrongfully deny husband’s property
damage claim under his automobile insurance policy, the district court erred in granting
husband’s motion for summary judgment, because insurance proceeds that are paid as
a result of a policy that is community property, where that policy was paid for with
community funds, are community property. Martinez v. Martinez, 2017-NMCA-032.

Vacation and sick leave. — A spouse’s unused vacation leave and unused sick leave
are community property and are divisible upon divorce. Arnold v. Arnold, 2003-NMCA-
114, 134 N.M. 381, 77 P.3d 285.

Disability retirement pay is community property for purposes of distribution of
property upon dissolution of marriage. Stroshine v. Stroshine, 1982-NMSC-113, 98 N.M.
742, 652 P.2d 1193.

Federal civil service disability benefits. — To the extent the community contributed,
a husband's future federal civil service disability benefits are community property
subject to division upon dissolution of a marriage. Hughes v. Hughes, 1981-NMSC-110,
96 N.M. 719, 634 P.2d 1271.

General presumption of community property is certainly not conclusive. Campbell
v. Campbell, 1957-NMSC-001, 62 N.M. 330, 310 P.2d 266.

Burden upon contestant asserting separate character. — The contestant asserting
the separate character of the property has not only the burden of going forward with his
evidence, but of establishing separate ownership by a preponderance of evidence.
Campbell v. Campbell, 1957-NMSC-001, 62 N.M. 330, 310 P.2d 266.

It is settled law in New Mexico that property acquired in this state during coverture is
presumptively community property, and one asserting it to be separate estate has the
burden of establishing such fact by a preponderance of the evidence. Mounsey v. Stahl,
1956-NMSC-110, 62 N.M. 135, 306 P.2d 258.

Presumption does not obtain if intention other than community expressed. —
Where property is acquired by husband and wife by an instrument in writing in which
they are described as such, the presumption as to community property does not obtain
if a different intention is expressed in the instrument. Shanafelt v. Holloman, 1956-
NMSC-047, 61 N.M. 147, 296 P.2d 752.

Showing that community earning exceeded community expenses, even though the
excess be slight, supports a finding of community property. Campbell v. Campbell,
1957-NMSC-001, 62 N.M. 330, 310 P.2d 266.

Relative amounts of separate property and community property which make up
commingled total is an important factor. Conley v. Quinn, 1959-NMSC-065, 66 N.M.
242, 346 P.2d 1030.

Where commingled with large amount of separate property. — When there is a
commingling of a negligible amount of community property with a large amount of
separate property so that the separate property can no longer be identified, the general
rule that such property falls under the presumption of community property is not
followed. Conley v. Quinn, 1959-NMSC-065, 66 N.M. 242, 346 P.2d 1030.

Preponderance of evidence needed to overcome presumption. — Proof to
overcome the presumption of community ownership need only amount to a
preponderance of the evidence. Campbell v. Campbell, 1957-NMSC-001, 62 N.M. 330,
310 P.2d 266.

Where the acquisition of property is involved, the presumption of community property
may be overcome by a preponderance of evidence. Shanafelt v. Holloman, 1956-
NMSC-047, 61 N.M. 147, 296 P.2d 752; Hughes v. Hughes, 1981-NMSC-110, 96 N.M.
719, 634 P.2d 1271.

The presumption that property acquired after marriage is community property is
rebutted when the separate character of the property in question is proved by a
preponderance of the evidence in the trial court. Conley v. Quinn, 1959-NMSC-065, 66
N.M. 242, 346 P.2d 1030 (decided under former law).

The presumption that property acquired during marriage is community property may be
rebutted by a preponderance of the evidence. Mitchell v. Mitchell, 1986-NMCA-028, 104
N.M. 205, 719 P.2d 432, cert. denied, 104 N.M. 84, 717 P.2d 60; Arch, Ltd. v. Yu, 1988-
NMSC-101, 108 N.M. 67, 766 P.2d 911.

Warranty deeds conveying joint title. — Introduction of warranty deeds conveying
title to husband and wife was sufficient to establish prima facie that the real estate was
held as community property. Arch, Ltd. v. Yu, 1988-NMSC-101, 108 N.M. 67, 766 P.2d
911.

Presumption still has force and effect after testimony to rebut. — It cannot be said
that upon the mere introduction of testimony to rebut the presumption of community
property that the presumption is no longer to be considered of any force and effect.
Campbell v. Campbell, 1957-NMSC-001, 62 N.M. 330, 310 P.2d 266.

Substantial evidence needed to uphold presumption on appeal. — When evidence
in the case casts doubt upon the issue, a finding of community ownership will be upheld
as supported by substantial evidence. In counterpart, when the evidence of separate
ownership is clear and no evidence aside from the presumption exists to the contrary,
circumstantial or otherwise, a finding of community ownership should be overturned
upon appeal as not supported by substantial evidence. Campbell v. Campbell, 1957-
NMSC-001, 62 N.M. 330, 310 P.2d 266.

Upon appeal the question whether the presumption of community property has been
overcome as a matter of law depends upon whether there is substantial evidence to
support the finding of the trial court. The cases are numerous which hold the substantial
evidence rule applies in such case, as does the usual appellate rule of indulging all
presumptions in favor of the judgment. Campbell v. Campbell, 1957-NMSC-001, 62
N.M. 330, 310 P.2d 266.

Presumption not rebutted. — The words and conduct of a disingenuous spouse in
misrepresenting that real estate was his separate property were not sufficient to rebut a
presumption that property was held as a community interest. Arch, Ltd. v. Yu, 1988-
NMSC-101, 108 N.M. 67, 766 P.2d 911.

Wife failed to rebut the presumption that property acquired during the marriage
was community property. — In a divorce proceeding, where wife appealed the district
court's characterization of assets and debts as separate or community property and the
court's division of marital assets and debts between her and husband, the district court
did not err in determining that the parties' business was community property and not
wife's separate property, because the district court's decision was supported by
evidence in the record, including wife's failure to support her testimony with any
documentation that gift of $2,000 was used to start the business, that the $2,000
amount was unlikely to have been sufficient to fund the launch of a corporation engaged
in heavy earth-moving, and undisputed evidence that husband was involved from the
outset in every aspect of creating and running the corporation. Wife failed to rebut the
presumption that property acquired during the marriage was community property.
Autrey v. Autrey, 2022-NMCA-042, cert. granted.

                            III.   SEPARATE PROPERTY.

Property acquired with independent funds as separate. — When it is established
that community funds equal or fall short of community expenditures, property acquired
by the husband, having independent funds at his disposal, should be held, by legitimate
inference, to be his separate property. Campbell v. Campbell, 1957-NMSC-001, 62
N.M. 330, 310 P.2d 266.

Deed naming one spouse raises presumption of separate property. — A deed that
names only one spouse does not convey the realty absolutely as separate property, but
only creates a presumption of separate property that may be rebutted. Overcoming this
presumption by a preponderance of the evidence appears to be sufficient. Sanchez v.
Sanchez, 1987-NMCA-143, 106 N.M. 648, 748 P.2d 21, cert. denied, 106 N.M. 627,
747 P.2d 922.

Earnings of wife belong to community where working for husband's partnership.
Dale v. Dale, 1953-NMSC-081, 57 N.M. 593, 261 P.2d 438.

Burden of proving nature and value of improvements made to separate property.
— Real property acquired by a husband prior to marriage, and paid for during the
marriage with monies from his retirement disability pension, was separate property.
Thus, where the wife failed to show the amount by which community labor or funds
enhanced the value of the property, the trial court's decision to apportion some of the
proceeds of the sale of the property to the community was not supported by the record.
Bayer v. Bayer, 1990-NMCA-106, 110 N.M. 782, 800 P.2d 216, cert. denied, 110 N.M.
749, 799 P.2d 1121.

Where origin of property preceded marriage presumption no longer prevails. —
When, upon the exhibition of the whole title, it appears that the origin of property
preceded the marriage, and that it was separate property, the presumption no longer
prevails. Hollingsworth v. Hicks, 1953-NMSC-045, 57 N.M. 336, 258 P.2d 724.

Preponderance of evidence needed to overcome presumption. — The contestant
asserting the separate character of property has not only the burden of going forward
with the evidence, but of establishing separate ownership by a preponderance of the
evidence. White v. White, 1987-NMCA-032, 105 N.M. 600, 734 P.2d 1283.

Separate property must be traceable and identifiable. — If separate property has
been so intermingled with community property that it cannot be traced or identified, the
evidence of separate status is insufficient to overcome the presumption of community
property. Mitchell v. Mitchell, 1986-NMCA-028, 104 N.M. 205, 719 P.2d 432, cert.
denied, 104 N.M. 84, 717 P.2d 60.

Law reviews. — For comment on Thaxton v. Thaxton, 75 N.M. 450, 405 P.2d 932
(1965), see 6 Nat. Resources J. 298 (1966).

For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative
History," see 5 N.M.L. Rev. 1 (1974).
For article, "Survey of New Mexico Law, 1979-80: Commercial Law," see 11 N.M.L.
Rev. 69 (1981).

For note, "Community Property - Transmutation of Community Property: A Preference
for Joint Tenancy in New Mexico?" see 11 N.M.L. Rev. 421 (1981).

For note, "Community Property - Spouse's Future Federal Civil Service Disability
Benefits are Community Property to the Extent the Community Contributed to the Civil
Service Fund During Marriage: Hughes v. Hughes," see 13 N.M.L. Rev. 193 (1983).

For article, "Survey of New Mexico Law, 1982-83: Domestic Relations," see 14 N.M.L.
Rev. 135 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Community Property
§§ 56 to 65.

What contract, understanding, circumstances, etc., will render a wife's personal
earnings separate property, 67 A.L.R.2d 708.

Change of domicil as affecting character of property previously acquired as separate or
community property, 14 A.L.R.3d 404.

Spouse's professional degree or license as marital property for purposes of alimony,
support, or property settlement, 4 A.L.R.4th 1294.

Divorce and separation: appreciation in value of separate property during marriage
without contribution by either spouse as separate or community property, 24 A.L.R.4th
453.

Divorce: equitable distribution doctrine, 41 A.L.R.4th 481.