N.M. Stat. § 45-3-805 (2026)

   A. If the applicable assets of the estate are insufficient to pay all claims in full, the
personal representative shall make payment in the following order:

      (1)    costs and expenses of administration, including compensation of personal
representatives and of persons employed by the personal representatives;

       (2)    reasonable funeral expenses;

       (3)    debts and taxes with preference under federal law;

     (4)     reasonable medical and hospital expenses of the last illness of the
decedent, including compensation of persons attending the decedent;

       (5)    debts and taxes with preference under other laws of New Mexico; and

       (6)    all other claims.

    B. No preference shall be given in the payment of any claim over any other claim of
the same class, and a claim due and payable shall not be entitled to a preference over
claims not due.

History: 1953 Comp., § 32A-3-805, enacted by Laws 1975, ch. 257, § 3-805; 1976
(S.S.), ch. 37, § 12; 1995, ch. 210, § 42.

                                      ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to
3-805 UPC.

Compiler's notes. — This section includes within its scope some of the functions of
former 31-8-10 and 31-8-11, 1953 Comp.

The 1995 amendment, effective July 1, 1995, in Subsection A, inserted "including" and
substituted "persons employed by the personal representatives" for "attorneys" at the
end of Paragraph (1); transferred similar provisions to those contained in former
Paragraph (2) to Paragraph (4); and redesignated former Paragraphs (3) and (4) as
Paragraphs (2) and (3).

Spousal support and attorney fees awarded after death of spouse. — In a divorce
proceeding continued after the death of a spouse pursuant to 40-4-20 NMSA 1978 in
which the court awards lump-sum spousal support and attorney fees, the final judgment
is not a claim against the estate of the deceased spouse for purposes of the Probate
Code’s creditor’s claims provisions of 45-3-805 NMSA 1978. Estate of Nauert v.
Morgan-Nauret, 2012-NMCA-037, 274 P.3d 799.
Where the deceased spouse who filed for divorce in March 2006 died while the divorce
action was pending; in September 2007, the probate court appointed a personal
representative of the estate; in November 2007, the divorce court awarded the surviving
spouse monthly spousal support from September 2007 and attorney fees and ordered
the estate to pay the awards immediately; and the personal representative claimed that
the awards were Class Six claims under 45-3-805 NMSA 1978, the awards were not
claims under the Probate Code to which the creditors’ claims provisions of 45-3-805
NMSA 1978 applied. Estate of Nauert v. Morgan-Nauret, 2012-NMCA-037, 274 P.3d
799.

Where a divorce proceeding was continued after the death of a spouse and the divorce
court ordered the deceased spouse’s estate to immediately pay a lump-sum amount for
spousal support and attorney fees to the surviving spouse, the award did not violate the
Federal Insolvency Act, 31 U.S.C. § 3713(a)(1)(B) which requires claims of the United
States government to be paid first when the estate of the deceased debtor is not
enough to pay all debts of the debtor, because the divorce court awards were not claims
against the estate of the deceased spouse and the act did not apply. Estate of Nauert v.
Morgan-Nauret, 2012-NMCA-037, 274 P.3d 799.

A claim for funeral and medical expenses of the decedent was a valid claim against
the estate and was accorded priority in accordance with the provisions of this section. In
re Estates of Salas, 1987-NMCA-018, 105 N.M. 472, 734 P.2d 250.

Priority of decedent’s lien on specific property. — Expenses necessary to the
administration of the estate are subject to the lien of a mortgage executed on specific
property by the deceased in his lifetime; the justice of this rule is plain: the creditor
merely gets the benefit of a contract made with the deceased. Shortle v. Mccloskey,
1935-NMSC-043, 39 N.M. 273, 46 P.2d 50.

Third party’s expenses in operating decedent’s business. — Where a third person
furnishes supplies which are used by an executor or administrator in operating and
conducting the business of the decedent, as well as money which is used in defraying
the expenses of conducting such business, the third person is entitled to take the place
and stead of the executor or administrator and to be likewise reimbursed therefor before
the creditors are paid anything upon their accounts. Perez v. Gil's Estate, 1924-NMSC-
014, 29 N.M. 313, 222 P. 907.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Meaning of phrase "last sickness" and
the like in statutes giving preference to expenses, 9 A.L.R. 462.

When funeral expenses deemed ordered on personal credit rather than on credit of
estate, 30 A.L.R. 444.

Expense of removing and reinterring remains as a funeral expense, 40 A.L.R. 1459.
State's prerogative right of preference at common law, 51 A.L.R. 1355, 65 A.L.R. 1331,
90 A.L.R. 184, 167 A.L.R. 640.

Foreclosure decree which ascertains amount of mortgage due or other claim as
judgment within statute relating to rank of claims against decedent's estate, 57 A.L.R.
489.

Rank or preference of claim against insolvent estate with respect to stockholder's
superadded liability, 92 A.L.R. 1040.

Expenses of preserving assets before appointment of executor or administrator as
entitled to priority, 108 A.L.R. 393.

Priority in event of incompetent's death of claims incurred during guardianship over
other claims against estate, 113 A.L.R. 402.

Judgment against executor or administrator, or levy of attachment or execution against
him, as affecting rank of creditor's claims against estate or his rights in respect of
property of estate, 121 A.L.R. 656.

Tombstone or monument as a proper charge against estate of decedent, 121 A.L.R.
1103.

Construction and application of statutory provisions as to classification or priority of
claims against decedent's estate in respect of money or property received by decedent
in trust or as a fiduciary, 125 A.L.R. 1487.

Rank of foreign judgment, or judgment of sister state, rendered in lifetime of debtor, in
settlement of debtor's estate after his death, 128 A.L.R. 1400.

Personal claim of executor or administrator against estate, antedating death of
decedent, 144 A.L.R. 953.

Amount of funeral expenses allowable against decedent's estate, 4 A.L.R.2d 995.

Family allowance granted widow as payable from community interests of decedent and
widow, 9 A.L.R.2d 529.

Propriety of payment of funeral expenses of life beneficiary or life tenant out of corpus
or estate under instrument providing for invasion of corpus or estate for support of such
person, 18 A.L.R.2d 1236.

Reimbursement, from decedent's estate, of person other than personal representative
or surviving spouse paying funeral expenses, 35 A.L.R.2d 1399.

Powers and duties of a public administrator, 56 A.L.R.2d 1183.
Liability for funeral expenses of married women, 82 A.L.R.2d 873.

Preference or priority of claims arising out of continuation of decedent's business by
personal representative, 83 A.L.R.2d 1347.

Rent or its equivalent accruing after lessee's death as expense of administration of
estate, 22 A.L.R.3d 814.

Construction of statutory provisions giving priority on distribution to claims for wages of
servants, employees or the like, 52 A.L.R.3d 940.

34 C.J.S. Executors and Administrators § 458.