N.M. Stat. » N.M. Stat. / Chapter 45 / Article 2
New Mexico Statutes

N.M. Stat. § 45-2-104 (2026)

Requirement of survival by one hundred twenty hours;

✓ laws through the 2025 session (retrieved May 2026)
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individual in gestation.
   A. For purposes of intestate succession and allowances, and except as otherwise
provided in Subsection B of this section, the following rules apply:

        (1)    an individual born before a decedent's death who fails to survive the
decedent by one hundred twenty hours is deemed to have predeceased the decedent. If
it is not established by clear and convincing evidence that an individual born before the
decedent's death survived the decedent by one hundred twenty hours, it is deemed that
the individual failed to survive for the required period; and

       (2)     an individual in gestation at a decedent's death is deemed to be living at
the decedent's death if the individual lives one hundred twenty hours after birth. If it is
not established by clear and convincing evidence that an individual in gestation at the
decedent's death lived one hundred twenty hours after birth, it is deemed that the
individual failed to survive for the required period.

   B. This section does not apply if its application would cause the estate to pass to
the state under Section 45-2-105 NMSA 1978.
History: 1953 Comp., § 32A-2-104, enacted by Laws 1975, ch. 257, § 2-104; 1976
(S.S.), ch. 37, § 1; repealed and reenacted by Laws 1993, ch. 174, § 7; 2011, ch. 124, §
11.

                                     ANNOTATIONS

Official comments. — See Commissioners on Uniform State Laws official comment to
2-104 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 7 repealed former 45-2-104
NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-104, and enacted a new section,
effective July 1, 1993.

Cross references. — For definition of "survive", see 45-1-201 NMSA 1978.

For evidence standard, see 45-2-702 NMSA 1978.

The 2011 amendment, effective January 1, 2012, provided that an individual in
gestation at decedent’s death is deemed to be living at decedent’s death if the individual
lives one hundred twenty hours after birth.

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate
Code," see 6 N.M.L. Rev. 25 (1975).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Descent and Distribution
§ 110.

Decree directing distribution of estate to person who is dead, 25 A.L.R. 1563.

Time interval contemplated by provision of will or of statute of descent and distribution
with reference to death of two persons simultaneously or approximately at same time,
173 A.L.R. 1254.
Notes of Decisions
Cited in 6 cases (2 in the last 5 years), 1979–2024 · leading case: Harrell v. Hayes, 1998-NMCA-136, 125 N.M. 820.
Sort: Relevance Newest Treatment
Harrell v. Hayes, 1998-NMCA-136, 125 N.M. 820. · cites it 3× “Through what appears to be a misapplication of the 120-hour rule, see NMSA 1978, § 45-2-104 (1993), the district court found that the husband was the heir of his wife and that the husband’s brother and sister were his heirs.”
Ankrom v. State, 152 So. 3d 397 (Ala. 2013). “§ 3B:5-8 (2007); N.M. Stat. Ann. § 45-2-104 (A)(2) (2011); N.”
Matter of Est. of Seymour, 600 P.2d 274 (N.M. 1979). “Additionally, § 45-2-104, N.M.S.A. 1978 imposes a condition of survival on intestate takers.”
Seymour v. Davis, 600 P.2d 274 (N.M. 1979). “Additionally, § 45-2-104, N.M.S.A.1978 imposes a condition of survival on intestate takers.”
In re Est. of Kuchan, No. A-1-CA-40119 (N.M. Ct. App. Jan. 23, 2024). · cites it 3× “” The New Mexico Uniform Probate Code defines “surviving” as “an individual [that] has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event pursuant to Section 45-2-104 or 45-2-702.” Section 45-1-201(A)(52).”
In re Est. of Kuchan (N.M. Ct. App. 2024). · cites it 2× “” The New Mexico Uniform Probate Code defines 13 “surviving” as “an individual [that] has neither predeceased an event, including the 14 death of another individual, nor is deemed to have predeceased an event pursuant to 15 Section 45-2-104 or 45-2-702.” Section 45-1-201(A)(52).”
N.M. Stat. § 45-2-104(A)(1): 1 case
In re Est. of Kuchan, No. A-1-CA-40119 (N.M. Ct. App. Jan. 23, 2024). “” The New Mexico Uniform Probate Code defines “surviving” as “an individual [that] has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event pursuant to Section 45-2-104 or 45-2-702.” Section 45-1-201(A)(52).”
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