N.M. Stat. § 45-2-804 (2026)

divorce; no revocation by other changes of circumstances.
   A. As used in this section:

      (1)     "disposition or appointment of property" includes a transfer of an item of
property or other benefit to a beneficiary designated in a revocable trust or other
governing instrument;

       (2)    "divorce or annulment" means a divorce, annulment or dissolution or
declaration of invalidity of a marriage that would exclude the spouse as a surviving
spouse within the meaning of Section 45-2-802 NMSA 1978 or the commencement of a
valid proceeding concluded either before or after an individual's death by an order
purporting to terminate all marital property rights, including a property division judgment
entered pursuant to the provisions of Section 40-4-20 NMSA 1978. A decree of
separation that does not terminate the status of spouse is not a divorce for purposes of
this section;

       (3)    "divorced individual" includes an individual whose marriage has been
annulled;

        (4)   "governing instrument" means a governing instrument executed by the
divorced individual before the divorce or annulment of the divorced individual's marriage
to the former spouse;

       (5)    "relative of the divorced individual's former spouse" means an individual
who is related to the divorced individual's former spouse by blood, adoption or affinity
and who, after the divorce or annulment, is not related to the divorced individual by
blood, adoption or affinity; and

     (6)     "revocable", with respect to a disposition, appointment, provision or
nomination, means one under which the divorced individual, at the time of the divorce or
annulment, was alone empowered by law or under the governing instrument to cancel
the designation in favor of the former spouse or former spouse's relative whether or not
the divorced individual was then empowered to designate the divorced individual's own
self in place of the former spouse or in place of the former spouse's relative and
whether or not the divorced individual then had the capacity to exercise the power.

    B. Except as provided by the express terms of a governing instrument, a court order
or a contract relating to the division of the marital estate made between the divorced
individuals before or after the marriage, divorce or annulment, the divorce or annulment
of a marriage:

       (1)    revokes any revocable:

           (a) disposition or appointment of property made by a divorced individual to the
former spouse in a governing instrument and any disposition or appointment created by
law or in a governing instrument to a relative of the divorced individual's former spouse;

          (b) provision in a governing instrument conferring a general or nongeneral
power of appointment on the divorced individual's former spouse or on a relative of the
divorced individual's former spouse; and

           (c) nomination in a governing instrument, nominating a divorced individual's
former spouse or a relative of the divorced individual's former spouse to serve in any
fiduciary or representative capacity, including a personal representative, executor,
trustee, conservator, agent or guardian; and

       (2)     severs the interests of the former spouses in property held by them at the
time of the divorce or annulment as joint tenants with the right of survivorship,
transforming the interests of the former spouses into equal tenancies in common.

    C. A severance pursuant to the provisions of Paragraph (2) of Subsection B of this
section does not affect any third-party interest in property acquired for value and in good
faith reliance on an apparent title by survivorship in the survivor of the former spouses
unless a writing declaring the severance has been noted, registered, filed or recorded in
records appropriate to the kind and location of the property that are relied upon in the
ordinary course of transactions involving such property as evidence of ownership.

    D. Provisions of a governing instrument are given effect as if the former spouse and
relatives of the former spouse disclaimed all provisions revoked by this section or, in the
case of a revoked nomination in a fiduciary or representative capacity, as if the former
spouse and relatives of the former spouse died immediately before the divorce or
annulment.

   E. Provisions revoked solely by this section are revived by the divorced individual's
remarriage to the former spouse or by a nullification of the divorce or annulment.
   F. No change of circumstances other than as described in this section and in
Section 45-2-803 NMSA 1978 effects a revocation.

    G. A payor or other third party is not liable for having made a payment or transferred
an item of property or any other benefit to a beneficiary designated in a governing
instrument affected by a divorce, annulment or remarriage or for having taken any other
action in good faith reliance on the validity of the governing instrument before the payor
or other third party received written notice of the divorce, annulment or remarriage. A
payor or other third party is liable for a payment made or other action taken after the
payor or other third party received written notice of a claimed forfeiture or revocation
pursuant to the provisions of this section.

    Written notice of the divorce, annulment or remarriage pursuant to the provisions of
this section shall be mailed to the payor's or other third party's main office or home by
registered or certified mail, return receipt requested, or served upon the payor or other
third party in the same manner as a summons in a civil action. Upon receipt of the
written notice of the divorce, annulment or remarriage, a payor or other third party may
pay any amount owed or transfer or deposit any item of property held by it to or with the
court having jurisdiction of the probate proceedings relating to the decedent's estate or,
if no proceedings have been commenced, to or with the court having jurisdiction of
probate proceedings relating to decedents' estates located in the county of the
decedent's residence. The court shall hold the funds or item of property and, upon its
determination pursuant to the provisions of this section, shall order disbursement or
transfer in accordance with the determination. Payments, transfers or deposits made to
or with the court discharge the payor or other third party from all claims for the value of
amounts paid to or items of property transferred to or deposited with the court.

    H. A person who purchases property from a former spouse, relative of a former
spouse or any other person for value and without notice or who receives from a former
spouse, relative of a former spouse or any other person a payment or other item of
property in partial or full satisfaction of a legally enforceable obligation is neither
obligated pursuant to the provisions of this section to return the payment, item of
property or benefit nor is liable pursuant to the provisions of this section for the amount
of the payment or the value of the item of property or benefit. But a former spouse,
relative of a former spouse or other person who, not for value, received a payment, item
of property or any other benefit to which that person is not entitled pursuant to the
provisions of this section is obligated to return the payment, item of property or benefit
or is personally liable for the amount of the payment or the value of the item of property
or benefit to the person who is entitled to it pursuant to the provisions of this section.

    I. If this section or any part of this section is preempted by federal law with respect
to a payment, an item of property or any other benefit covered by this section, a former
spouse, relative of the former spouse or any other person who, not for value, received a
payment, item of property or any other benefit to which that person is not entitled
pursuant to the provisions of this section is obligated to return that payment, item of
property or benefit or is personally liable for the amount of the payment or the value of
the item of property or benefit to the person who would have been entitled to it were this
section or part of this section not preempted.

History: 1978 Comp., § 45-2-804, enacted by Laws 1993, ch. 174, § 63; 1995, ch. 210,
§ 24; 2011, ch. 124, § 31; 2019, ch. 221, §4.

                                     ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to
2-804 UPC.

Recompilations. — Laws 1993, ch. 174, § 64 recompiled former 45-2-804 NMSA
1978, relating to death of a spouse, as 45-2-805 NMSA 1978, effective July 1, 1993.

The 2019 amendment, effective July 1, 2019, made certain technical amendments; and
in Paragraph A(2), after "status of", deleted "husband and wife" and added "spouse".

Applicability. — Laws 2019, ch. 221, § 7, provided that the provisions of this act apply
to:

A.     a governing instrument created before, on or after July 1, 2019;

B.     a judicial proceeding commenced on or after July 1, 2019; and

C.      a judicial proceeding commenced before July 1, 2019, unless the court finds that
application of a particular provision of this act would substantially interfere with the
effective conduct of the judicial proceeding or prejudice a right of a party, in which case
the particular provision does not apply and the previous law applies.

The 2011 amendment, effective January 1, 2012, included a revocable trust in the
definition of "disposition or appointment of property" and included the commencement of
proceedings to terminate all marital property rights in the definition of "divorce or
annulment".

The 1995 amendment, effective July 1, 1995, in Subsection D, deleted "that are not
revoked by this section" following "governing instrument" and substituted "all provisions
revoked by this section" for "the revoked provisions".

Meaning of divorce. — A judgment or decree terminating all property rights pursuant to
40-4-20B NMSA 1978 meets the definition of a divorce pursuant to 45-2-804A(2) NMSA
1978 and is sufficient to revoke governing estate planning documents pursuant to 45-2-
804B(1)(a) NMSA 1978. Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d
701, aff'd in part, rev'd in part, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.

Admitting will to probate during pendency of divorce proceeding. — Where
decedent executed a will designating decedent’s spouse as the personal representative
and beneficiary of decedent’s estate; decedent subsequently filed a petition for divorce;
and decedent died while the divorce proceeding was pending, the court acted
prematurely in adjudicating the validity of the will and admitting the will to probate prior
to the completion of the pending divorce proceeding. Oldham v. Oldham, 2009-NMCA-
126, 147 N.M. 329, 222 P.3d 701, aff'd in part, rev'd in part, 2011-NMSC-007, 149 N.M.
215, 247 P.3d 736.

Construction of unrevoked provisions. — The Uniform Probate Code’s provision for
revocation of a will in the event of divorce controls the effect of divorce on the
construction of the unrevoked portions of the will. In re Estate of Seymour, 1979-NMSC-
069, 93 N.M. 328, 600 P.2d 274.