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New Mexico Statutes

N.M. Stat. § 45-2-604 (2026)

Failure of testamentary provision.

✓ current as of May 2026
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A. Except as provided in Section 45-2-603 NMSA 1978, a devise, other than a
residuary devise, that fails for any reason becomes a part of the residue.

    B. Except as provided in Section 45-2-603 NMSA 1978, if the residue is devised to
two or more persons, the share of a residuary devisee that fails for any reason passes
to the other residuary devisee or to other residuary devisees in proportion to the interest
of each in the remaining part of the residue.

History: 1953 Comp., § 32A-2-604, enacted by Laws 1975, ch. 257, § 2-604; repealed
and reenacted by Laws 1993, ch. 174, § 43.

                                      ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to
2-604 UPC.
Repeals and reenactments. — Laws 1993, ch. 174, § 43 repealed former 45-2-604
NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-604, relating to the construction of
a will, and enacted a new section, effective July 1, 1993.

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 80 Am. Jur. 2d Wills §§ 1671, 1688,
1695.

Validity, construction and effect of express provisions in will for severance of good from
bad in event of partial invalidity, 80 A.L.R. 1210.

Effect of residuary clause to pass property acquired by testator's estate after his death,
39 A.L.R.3d 1390.

May parts of will be upheld notwithstanding failure of other parts for lack of testamentary
mental capacity or undue influence, 64 A.L.R.3d 261.

96 C.J.S. Wills § 1223.
Notes of Decisions
Cited in 3 cases, 1983–1986 · leading case: Matter of Est. of Martinez, 664 P.2d 1007 (N.M. Ct. App. 1983).
Sort: Relevance Newest Treatment
Matter of Est. of Martinez, 664 P.2d 1007 (N.M. Ct. App. 1983). “2d 455 (1960); see also §§ 45-2-604 and 45-2-701, N.M.S.A.1978. Recently, in Mills v.”
Matter of Est. of Coleman, 718 P.2d 702 (N.M. Ct. App. 1986). · cites it 2× “The intention of the testator, expressed in his will, controls the legal effect of his dispositions.”
Coleman v. Offutt, 718 P.2d 702 (N.M. Ct. App. 1986). · cites it 2× “The intention of the testator, expressed in his will, controls the legal effect of his dispositions.”
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