New Mexico Statutes

N.M. Stat. § 45-3-101 (2026)

Devolution of estate at death; administration on deaths of

✓ current as of May 2026

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husband and wife.
A. The power of a person to leave property by will and the rights of creditors,
devisees and heirs to the person's property are subject to the restrictions and limitations
contained in Chapter 45, Article 3 NMSA 1978 to facilitate the prompt settlement of
estates.

B. Upon the death of a person, the person's separate property and the person's
share of community property devolves:

(1) to the persons to whom the property is devised by the person's last will;

(2) to those indicated as substitutes for them in cases involving revocation,
lapse, disclaimer or other circumstances pursuant to Chapter 45, Article 2 NMSA 1978
affecting the devolution of testate estates; or

(3) in the absence of testamentary disposition, to the person's heirs or to
those indicated as substitutes for them in cases involving revocation, lapse, disclaimer
or other circumstances pursuant to Chapter 45, Article 2, Parts 3, 4, 10 and 11 NMSA
1978 affecting the devolution of intestate estates.

C. The devolution of separate property and the decedent's share of community
property is subject to rights to the family allowance and personal property allowance, to
rights of creditors and to administration as provided in Chapter 45, Article 3 NMSA
1978. The surviving spouse's share of the community property is subject to
administration until the time for presentation of claims has expired, and thereafter only
to the extent necessary to pay community claims.

History: 1953 Comp., § 32A-3-101, enacted by Laws 1975, ch. 257, § 3-101; 2011, ch.
124, § 42.

ANNOTATIONS

Cross references. — For notice to creditors, see 45-3-801 NMSA 1978.

For statutes of limitations, see 45-3-802 NMSA 1978.

For distribution to person under disability, see 45-3-915 NMSA 1978.

The 2011 amendment, effective January 1, 2012, in Subsection A, changed the
statutory reference to Chapter 45, Article 3 NMSA 1978; in Subsection B, changed the
statutory reference to Chapter 45, Article 2 NMSA 1978; and in Subsection C, changed
the statutory reference to Chapter 45, Article 3 NMSA 1978.

Construction of will. — Statutory language providing that the devolution of separate
property and decedent's share of community property are subject to rights to the family
allowance and personal property allowance appears to place the statutory allowances
on a level that supersedes testator intent. Brito v. Jewell, 2001-NMCA-008, 130 N.M 93,
18 P.3d 334.

Proceedings for (now informal) probate of a will are in rem. C. de Baca v. Baca,
1964-NMSC-006, 73 N.M. 387, 388 P.2d 392.

Passage of real and personal property distinguished. — Real estate of a decedent
passes directly to the heirs or devisees and does not pass to the executor or
administrator. With personal property the rule is otherwise, and before title passes there
must be due administration followed by a determination of heirship and an order of
distribution. Clovis Nat'l Bank v. Callaway, 1961-NMSC-129, 69 N.M. 119, 364 P.2d 748
(decided under prior law).

Equitable interest in real estate resulting from sale may be devised by will and in
case of intestacy passes to his heirs and not to his administrator. Gregg v. Gardner,
1963-NMSC-223, 73 N.M. 347, 388 P.2d 68.
Testamentary transfers involuntary and direct. — Since the stock restriction on the
testator's stock in a closely-held corporation related to voluntary transfers by the
stockholder and not to involuntary transfers by law such as testamentary transfers, the
stock restriction did not prohibit the direct transfer of stock to the beneficiary according
to the stockholder's will. Kerr v. Porvenir Corp., 1994-NMCA-171, 119 N.M. 262, 889
P.2d 870, cert. denied, 119 N.M. 168, 889 P.2d 203.

Realty passes directly to the heir or devisee and the administrator does not take the
same into his possession unless there is no heir or devisee present to care for it and
collect the rentals. Conley v. Wikle, 1960-NMSC-009, 66 N.M. 366, 348 P.2d 485.

Executory contract for land. — It is settled in New Mexico that real estate owned by a
decedent descends upon his death to his heirs and not to his administrators; and it is
further settled that the purchaser under a real estate contract has acquired a property
interest in land of such a character that it descends to his heirs and not to his
administrators, the trial court therefore erred in allowing the administrator of the
purchaser’s estate a credit against the purchase price as damages for failure of the
vendor to deliver possession of the property, since it was the heirs who had the right to
possession at the moment the decedent died. Keirsey v. Hirsch, 1953-NMSC-112, 58
N.M. 18, 265 P.2d 346, superseded by statute, Sims v. Sims, 1996 NMSC 78, 122 N.M.
618, 930 P.2d 153.

Law reviews. — For article, "The Use of Revocable Inter Vivos Trusts in Estate
Planning," see 1 N.M.L. Rev. 143 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 827.

Liability for administration expenses of spouse electing against will, 89 A.L.R.3d 315.

Testamentary direction to devisee to pay stated sum of money to third party as creating
charge or condition or as imposing personal liability on devisee for nonpayment, 54
A.L.R.4th 1098.

41 C.J.S. Husband and Wife § 184 et seq.; 94 C.J.S. Wills § 3.

Notes of Decisions

Cited in 13 cases (3 in the last 5 years), 1981–2025 · leading case: Martinez v. Segovia, 62 P.3d 331 (N.M. Ct. App. 2002).

Sort: Relevance Newest Treatment

Martinez v. Segovia, 62 P.3d 331 (N.M. Ct. App. 2002). · cites it 2× “” NMSA 1978, § 45-3-101(B)(3) (1975). Passed to the surviving spouse is all or part of a decedent’s intestate estate and the “one-half of the community property as to which the decedent could have exercised the power of testamentary disposition.”

Kerr v. Porvenir Corp., 889 P.2d 870 (N.M. Ct. App. 1994). · cites it 6× “Section 45-3-101(B) provides: Upon the death of a person, his separate property and his share of community property devolves: (1) to the persons to whom the property is devised by his last will— Property disposed of by will passes directly to the beneficiary under the will.”

Tartaglia v. Hodges, 10 P.3d 176 (N.M. Ct. App. 2000). · cites it 2× “Appellants further argue that, in the present case, the procedures required in the New Mexico Probate Code, NMSA 1978, §§ 45-3-101 to -1302 (1975, as amended through 1995), for the establishment of heir-ship were not followed, placing the issue “beyond the Court’s authority.”

In Re Est. of Jewell, 18 P.3d 334 (N.M. Ct. App. 2001). · cites it 2× “For example, NMSA 1978, Section 45-3-101(0) (1975) provides, in pertinent part: “The devolution of separate property and decedent’s share of community property is subject to rights to the family allowance and personal property allowance.”

In Re Est. of Duran, 66 P.3d 326 (N.M. 2003). “NMSA 1978, § 45-2-101(A) (1993); § 45-3-101(B)(1) (1975) (distinguishing the passage of title to intestate heirs from the passage of title under a will).”

Madrid v. Rodriguez, 2003 NMSC 008 (N.M. 2003). “NMSA 1978, § 45-2-101 (A) (1993); § 45-3-101(B)(1) (1975) (distinguishing the passage of title to intestate heirs from the passage of title under a will).”

Portillo v. Shappie, 636 P.2d 878 (N.M. 1981). “See § 45-3-101, N.M.S.A.1978. Thus, since our emphasis is different from that of Spanish law, we do not feel bound to adhere to the Spanish rule on improvements to realty, which furthered the limitation on succession.”

Trujillo v. Lopez, 740 P.2d 707 (N.M. Ct. App. 1987). · cites it 2× “NMSA 1978, § 45-3-101(B)(3). If an heir or devisee requests partition of the property, the district court must partition if it can be done without prejudice to the interested heirs or devisees.”

BOKF, N.A. v. Pacheco (N.M. 2025). · cites it 4× “Section 45-3-101(B). However, neither Raymond Pacheco nor 8 Bryan Pacheco were named individually as defendants despite the fact that BOKF 9 had knowledge of their identity and location.”

Braswell v. Whitefeather (N.M. Ct. App. 2023). · cites it 3× “Section 45-3-101 does not state that the real property devolves “directly” to the decedent’s heirs and the probate statute cited in Conley was repealed in 1975.”

Van Winkle v. Belleview Valley Land Co. (Bankr. D.N.M. 2021). · cites it 2× “Similarly, if a redemption petitioner deposited insufficient funds, the redemption would not be completed, if ever, until the court fixed the proper amount due and the 7 Throughout, the parties have assumed that Debtor’s probate estate was the proper party to redeem the Property.”

Derryberry v. Derryberry (N.M. Ct. App. 2011). · cites it 2× “See NMSA 1978, § 45-3-101(B)(1) (1975) (stating that a 5 decedent’s property devolves “to the persons to whom the property is devised by his 6 last will”).”

Show all 13 citing cases →

— N.M. Stat. § 45-3-101(0) — 1 case

In Re Est. of Jewell, 18 P.3d 334 (N.M. Ct. App. 2001). “For example, NMSA 1978, Section 45-3-101(0) (1975) provides, in pertinent part: “The devolution of separate property and decedent’s share of community property is subject to rights to the family allowance and personal property allowance.”

— N.M. Stat. § 45-3-101(B) — 3 cases

Kerr v. Porvenir Corp., 889 P.2d 870 (N.M. Ct. App. 1994). “Section 45-3-101(B) provides: Upon the death of a person, his separate property and his share of community property devolves: (1) to the persons to whom the property is devised by his last will— Property disposed of by will passes directly to the beneficiary under the will.”

Van Winkle v. Belleview Valley Land Co. (Bankr. D.N.M. 2021). “Similarly, if a redemption petitioner deposited insufficient funds, the redemption would not be completed, if ever, until the court fixed the proper amount due and the 7 Throughout, the parties have assumed that Debtor’s probate estate was the proper party to redeem the Property.”

BOKF, N.A. v. Pacheco (N.M. 2025). “Section 45-3-101(B). However, neither Raymond Pacheco nor 8 Bryan Pacheco were named individually as defendants despite the fact that BOKF 9 had knowledge of their identity and location.”

— N.M. Stat. § 45-3-101(B)(1) — 3 cases

Derryberry v. Derryberry (N.M. Ct. App. 2011). “See NMSA 1978, § 45-3-101(B)(1) (1975) (stating that a 5 decedent’s property devolves “to the persons to whom the property is devised by his 6 last will”).”

— N.M. Stat. § 45-3-101(B)(2) — 1 case

— N.M. Stat. § 45-3-101(B)(3) — 3 cases

Martinez v. Segovia, 62 P.3d 331 (N.M. Ct. App. 2002). “” NMSA 1978, § 45-3-101(B)(3) (1975). Passed to the surviving spouse is all or part of a decedent’s intestate estate and the “one-half of the community property as to which the decedent could have exercised the power of testamentary disposition.”

Trujillo v. Lopez, 740 P.2d 707 (N.M. Ct. App. 1987). “NMSA 1978, § 45-3-101(B)(3). If an heir or devisee requests partition of the property, the district court must partition if it can be done without prejudice to the interested heirs or devisees.”

— N.M. Stat. § 45-3-101(C) — 1 case

Braswell v. Whitefeather (N.M. Ct. App. 2023). “Section 45-3-101 does not state that the real property devolves “directly” to the decedent’s heirs and the probate statute cited in Conley was repealed in 1975.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.