New Mexico Statutes

N.M. Stat. § 47-1-16 (2026)

[Instrument of conveyance; prima facie evidence of joint

✓ current as of May 2026

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tenancy.] An instrument conveying or transferring title to real or personal property to two or more persons as joint tenants, to two or more persons and to the survivors of them and the heirs and assigns of the survivor, or to two or more persons with right of survivorship, shall be prima facie evidence that such property is held in a joint tenancy and shall be conclusive as to purchasers or encumbrancers for value. In any litigation involving the issue of such tenancy a preponderance of the evidence shall be sufficient to establish the same.

History: 1953 Comp., § 70-1-14.1, enacted by Laws 1955, ch. 174, § 1.

ANNOTATIONS Section applies to bank accounts. Kinney v. Ewing, 1972-NMSC-001, 83 N.M. 365, 492 P.2d 636.

This statute is intended to do away with special proof requirement when there is a transmutation of community property into joint tenancy. Estate of Fletcher v. Jackson, 1980-NMCA-054, 94 N.M. 572, 613 P.2d 714, cert. denied, 94 N.M. 674, 615 P.2d 991.

Quantum of proof necessary to rebut or sustain prima facie evidence of joint tenancy is preponderance of the evidence, not clear, strong and convincing proof. Blake v. Blake, 1985-NMCA-009, 102 N.M. 354, 695 P.2d 838.

Joint tenancy created. — Execution of a joint tenancy deed by a husband, putting separate property in the names of the husband and wife, creates a joint tenancy, not community property. Hughes v. Hughes, 1981-NMSC-110, 96 N.M. 719, 634 P.2d 1271.

Parol evidence may be looked at to determine grantor's intent and the parties' understanding in establishing whether a deed created a joint tenancy, except where purchaser or encumbrancers for value are involved. Ohl v. Ohl, 1981-NMSC-128, 97 N.M. 175, 637 P.2d 1230.

Existence and nonexistence of joint tenancy both proved by preponderance. — The words "the same" in the last sentence of this section refer back to "the issue of such tenancy." If joint tenancy is "in issue," its existence is to be resolved, and the negative would seem to be as much included as the affirmative. If the legislature had intended the negative to require a greater quantum of proof than the affirmative, it is reasonable to suppose that it would have said so. Kinney v. Ewing, 1972-NMSC-001, 83 N.M. 365, 492 P.2d 636.

Community funds used with no intention to establish joint tenancy creates no such tenancy. — Because it was not the intention of husband and wife to hold the property as joint tenants, and because community funds were used to purchase the property, the trial court properly concluded that a joint tenancy was not created. Wiggins v. Rush, 1971-NMSC-092, 83 N.M. 133, 489 P.2d 641.

Presumption against joint tenancy. — If separate property has been so commingled or mixed with property acquired after marriage so that the separate property cannot be clearly traced or identified, then there is a presumption that the property acquired after marriage is community property, and not held in joint tenancy, unless this presumption can be overcome by proof. Wiggins v. Rush, 1971-NMSC-092, 83 N.M. 133, 489 P.2d 641.

Law reviews. — For symposium, "The Effects of an Equal Rights Amendment on the New Mexico System of Community Property: Problems of Characterization, Management and Control," see 3 N.M. L. Rev. 11 (1973). For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M. L. Rev. 1 (1974).

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).

For article, "Survey of New Mexico Law, 1979-80: Domestic Relations and Juvenile Law," see 11 N.M.L. Rev. 134 (1981).

For note, "Community Property - Transmutation of Community Property: A Preference for Joint Tenancy in New Mexico?" see 11 N.M.L. Rev. 421 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Ratification of prior ineffective deed by joining in instrument, 7 A.L.R.2d 294.

Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence or incompetency, 7 A.L.R.2d 1317.

Deed as superseding or merging provisions of antecedent contract imposing obligations upon the vendor, 38 A.L.R.2d 1310.

Estate created by deed to persons described as husband and wife but not legally married, 9 A.L.R.4th 1189.

26 C.J.S. Deeds § 127.

Notes of Decisions

Cited in 10 cases, 1980–2012 · leading case: Est. of Fletcher v. Jackson, 613 P.2d 714 (N.M. Ct. App. 1980).

Sort: Relevance Newest Treatment

Est. of Fletcher v. Jackson, 613 P.2d 714 (N.M. Ct. App. 1980). · cites it 59× “2d 805 (1953)) and (b) under § 47-1-16, N.M.S.A. 1978. A. The Trimble Rule Section 40-2-2, N.”

Swink v. Fingado, 850 P.2d 978 (N.M. 1993). · cites it 8× “What is the law relating to other kinds of assets, such as bank accounts, stocks and bonds, and the like? First, NMSA 1978, Section 47-1-16 (Repl.Pamp.1991), provides that an instrument transferring title to real or personal property to two or more persons as joint tenants is…”

Blake v. Blake, 695 P.2d 838 (N.M. Ct. App. 1985). · cites it 6× “We are concerned with the effect of NMSA 1978, Section 47-1-16 which applies because title was taken in joint tenancy.”

Nichols v. Nichols, 648 P.2d 780 (N.M. 1982). · cites it 2× “However, in Corley we were examining the issue of transmutation in the light of Section 47-1-16, N.M.S.A.1978, see Shapiro, Domestic Relations and Juvenile Law, 11 N.”

Ohl v. Ohl, 637 P.2d 1230 (N.M. 1982). · cites it 4× “Even if the deed were before the court, the plain meaning of Section 47-1-16, N.M.S.A.1978, requires us to conclude that the Legislature intended that the court consider parol evidence.”

Hughes v. Hughes, 634 P.2d 1271 (N.M. 1981). · cites it 2× “The relevant statute is Section 47-1-16, N.M.S.A.1978, which states: An instrument conveying or transferring title to real or personal property to two or more persons as joint tenants, to two or more persons and to the survivors of them and the heirs and assigns of the survivor,…”

Hughes v. Hughes, 678 P.2d 702 (N.M. 1984). · cites it 2× “This Court found that there was nothing in the record to rebut the presumption established by NMSA 1978, Section 47-1-16 that a joint tenancy in the residence was created by a joint tenancy deed Husband executed to himself and petitioner (Wife).”

Edwin Smith, LLC v. Clark, 2011 NMCA 3 (N.M. Ct. App. 2010). · cites it 2× “2d at 720 (citing NMSA 1978, § 47-1-16 (1955)). As evidenced by the straw man transaction and the words on the 1951 deed, a joint tenancy was established.”

Edwin Smith, L.L.C. v. Synergy Operating, L.L.C., 2012 NMSC 34 (N.M. 2012). · cites it 2× “shall be prima facie evidence that such property is held in a joint tenancy and shall be conclusive as to purchasers or encumbrancers for value.”

Edwin Smith, LLC v. Clark, 247 P.3d 1134 (N.M. Ct. App. 2010). · cites it 2× “2d at 720 (citing NMSA 1978, § 47-1-16 (1955)). As evidenced by the straw man transaction and the words on the 1951 deed, a joint tenancy was established.”

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