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Who inherits when there is no will in New Mexico
If someone dies without a will, New Mexico law decides who inherits. Because New Mexico is a community property state, the answer depends on what kind of property it is.
Surviving spouse
Under NMSA 45-2-102 the surviving spouse receives:
- All of the decedent's share of community property; and
- For separate property: all of it if the decedent left no children or other descendants, otherwise one quarter.
Children and other relatives
Separate property not going to the spouse passes to descendants. With no spouse or descendants, it passes to parents, then to the parents' descendants (brothers, sisters, nieces, nephews), and further out from there (NMSA 45-2-103).
Community vs separate property
Roughly, property acquired during the marriage is community property, and property owned before marriage or received by gift or inheritance is separate. Mixed property and property that changed character are common sources of disputes; that is a good time to involve a lawyer.
Do the heirs still need probate?
Inheriting under intestacy does not by itself transfer title. Heirs still need a small estate affidavit (for estates of $50,000 or less without real estate) or a probate case to get the property into their names.
Frequently asked questions
Does the spouse get everything in New Mexico without a will?
The spouse gets all of the decedent's community property, and all of the separate property only if there are no descendants. With descendants, the spouse gets one quarter of the separate property.