N.M. Stat. § 45-2-403 (2026)

In addition to the family allowance, the decedent's surviving spouse is entitled from
the estate to a value, not exceeding fifteen thousand dollars ($15,000) in excess of any
security interests therein, in household furniture, automobiles, furnishings, appliances
and personal effects. If there is no surviving spouse, the decedent's children who are
devisees under the will, who are entitled to a share of the estate pursuant to Section 45-
2-302 NMSA 1978 or, if there is no will, who are intestate heirs are entitled jointly to the
same value. If encumbered chattels are selected and the value in excess of security
interests plus that of other exempt property is less than fifteen thousand dollars
($15,000) or if there is not fifteen thousand dollars ($15,000) worth of exempt property
in the estate, the spouse or children are entitled to other assets of the estate, if any, to
the extent necessary to make up the fifteen thousand dollar ($15,000) value. Rights to
specific property for the personal property allowance and assets needed to make up a
deficiency in the property have priority over all claims against the estate, but the right to
any assets to make up a deficiency of exempt property abates as necessary to permit
earlier payment of the family allowance. These rights are in addition to any benefit or
share passing to the surviving spouse or children by intestate succession or by the
decedent's will, unless otherwise provided by the decedent in the will or other governing
instrument.

History: 1978 Comp., § 45-2-403, enacted by Laws 1993, ch. 174, § 21; 1995, ch. 210,
§ 8; 1997, ch. 95, § 1; 1999, ch. 79, § 1; 2011, ch. 124, § 21.

                                     ANNOTATIONS

Official comments. — See Commissioners on Uniform State Laws official comment to
2-403 UPC.

Cross references. — For rules governing garnishment and writs of execution in the
district, magistrate, and metropolitan courts, see 1-065.1, 2-801 and 3-801 NMRA,
respectively.

For form for claim of exemptions on executions, see 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see
4-804 NMRA.

For form for application for writ of garnishment and affidavit, see 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see 4-808A NMRA.
For form for claim of exemption from garnishment, see 4-809 NMRA.

The 2011 amendment, effective January 1, 2012, provided that rights to specific
property for the personal property allowance needed to make up a deficiency in the
property have priority over all claims against the estate.

The 1999 amendment, effective June 18, 1999, in the second sentence, inserted the
language beginning "who are" and ending "intestate heirs".

The 1997 amendment, effective April 8, 1997, substituted "fifteen thousand dollars
($15,000)" for "ten thousand dollars ($10,000)" throughout the section and deleted "who
is a devisee under the will" following "spouse" in the first sentence.

The 1995 amendment, effective July 1, 1995, inserted "who is a devisee under the will"
in the first sentence; inserted "who are devisees under the will or, if there is no will, who
are intestate heirs" in the second sentence; and, in the last sentence, inserted "by
intestate succession or" and substituted "by the descendant in the will or other
governing instrument" for "or by intestate succession" at the end.

Transfers outside of a will cannot offset or preclude the statutory allowances. Bell
v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 2008-
NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Death of surviving spouse prior to distribution of statutory allowances. — The
legislature did not intend that statutory allowances, which are not claimed prior to the
death of the surviving spouse, be transferred from the decedent’s estate to the estate
and heirs of the surviving spouse. Duran v. Vigil, 2012-NMCA-121, 296 P.3d 1209, cert.
denied, 2012-NMCERT-011.

Decedent's estate was entitled to family and personal property allowances when
claim for allowances was made prior to decedent's death. — 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 pursued wife's claims of family and personal
allowances and the community lien against the west tract, and where the district court,
following a bench trial, held that wife's estate was not entitled to family and personal
property allowances even though wife would have been entitled to those allowances
during her lifetime, the district court erred in denying respondent's request for the
allowances, because wife claimed the allowances before she died and while she was
the surviving spouse of husband. In re Estate of Kuchan, 2024-NMCA-032.
Policy against waiver. — The policy behind the statutory allowance personal property
allowance argues against finding a waiver in the absence of clear explicit language.
Salopek v. Hoffman, 2005-NMCA-016, 137 N.M. 47, 107 P.3d 1, cert. denied, 2005-
NMCERT-002, 137 N.M. 265, 110 P.3d 73.

Where terms of post-nuptial agreement are too general and too ambiguous, the
agreement will not support a finding of waiver of the personal property allowance.
Salopek v. Hoffman, 2005-NMCA-016, 137 N.M. 47, 107 P.3d 1, cert. denied, 2005-
NMCERT-002, 137 N.M. 265, 110 P.3d 73.

Entitlement to allowances. — The surviving spouse is entitled to the allowances
provided under this section and 45-2-402 NMSA 1978 notwithstanding contrary
intentions expressed in the deceased spouse's will. Brito v. Jewell, 2001-NMCA-008,
130 N.M 93, 18 P.3d 334.

Law reviews. — For comment, "In-Migration of Couples from Common Law
Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M.L. Rev.
113 (1978-79).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 94 C.J.S. Wills § 167; 97 C.J.S. Wills §§
1287, 1288.