The intestate share of the surviving spouse is determined as follows:

A. as to separate property:

(1) if there is no surviving issue of the decedent, the entire intestate estate; or

(2) if there is surviving issue of the decedent, one-fourth of the intestate estate; and

B. as to community property, the one-half of the community property as to which the decedent could have exercised the power of testamentary disposition passes to the surviving spouse.

History: 1953 Comp., § 32A-2-102, enacted by Laws 1975, ch. 257, § 2-102.

Compiler's notes. — This section includes within its scope some of the functions of former 29-1-8 to 29-1-10, 29-1-13, 1953 Comp.

Cross references. — For share of heirs other than surviving spouse, see 45-2-103 NMSA 1978.

Estate's award from September 11th victim compensation fund of 2001. — The $250,000 non-economic losses award for the decedent from the September 11th victim compensation fund of 2001 was the separate property of the decedent and where the decedent was intestate, the award should be distributed one-fourth to the decedent's surviving spouse and three-fourths to the children of the decedent. Marchand v. Marchand, 2007-NMCA-138, 142 NM 795, 171 P.3d 309, aff'd in part, rev'd in part, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281.

Offsets against estate's award. — The amount of collateral benefits assigned to each beneficiary of a September 11th victim compensation fund of 2001 award should be applied against each beneficiary's share of the $250,000 non-economic loss award to the decedent's estate thereby offsetting each beneficiary's share of the $250,000 in proportion to the collateral benefits that each beneficiary has received. Where the spouse of the intestate decedent received $1,012,321 in collateral benefits and the surviving child of the decedent received $17,500 in collateral benefits, the spouse was entitled to one-quarter of the $250,000 of non-economic losses awarded to the decedent's estate less the collateral benefits received by the spouse, which eliminated the share of the spouse, and the child was entitled to three-quarters of the award less the collateral benefits received by the child, which reduced the child's share to $170,000. Marchand v. Marchand, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281, rev'g in part 2007-NMCA-138, 142 N.M. 795, 171 P.3d 309.

Offsets against heirs' awards. — The collateral benefits received by the spouse and children of a decedent from the September 11th victim compensation fund are not applied to offset the $100,000 non-economic losses awarded to the spouse and each dependent of the decedent because the $100,000 awards are to compensate the spouse and each dependent for pain and suffering and loss of consortium resulting from the death of the decedent. Marchand v. Marchand, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281, rev'g in part 2007-NMCA-138, 142 N.M. 795, 171 P.3d 309.

Division of estate to wife and two children. — Where a testator has two pretermitted children, and the property is his separate estate, it descends one-fourth to the wife and three-eighths to each of the children, but where it is community property, the wife has a five-eighths interest and each of the children takes three-sixteenths. Dunham v. Stitzberg, 1948-NMSC-037, 53 N.M. 81, 201 P.2d 1000, overruled on other grounds by Conley v. Quinn, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906.

Share of omitted spouse. — Where decedent's will omitted his spouse and his only child, who was an adopted son, and disposed of the entire estate to a third person, the surviving spouse was entitled to a one-fourth interest. In re Estate of Coleman v. Offutt, 1986-NMCA-030, 104 N.M. 192, 718 P.2d 702.

Inheritance of widow despite separation contract waiving and releasing rights. — A widow can take property of her intestate husband notwithstanding a contract of separation whereby the wife waives rights to support, maintenance and alimony, and released right, title and interest to all property now owned or hereafter acquired by the husband. Girard v. Girard, 1923-NMSC-086, 29 N.M. 189, 221 P. 801.

Disposition of community property upon death of wife. — The interest of the deceased wife in the community estate does not pass to her husband but belongs to him, and is not subject to a federal estate tax. Hernandez v. Becker, 54 F.2d 542 (10th Cir. 1931).

Where sheep acquired after marriage included in community property. — Where deceased husband owns 50 sheep at time of his marriage to appellee and some 500 more are later bought with funds borrowed on the credit of the community, most of such payment being made after the husband's death, evidence is ample that 875 head of sheep at the time of death belong to the community. Stroope v. Potter, 1944-NMSC-049, 48 N.M. 404, 151 P.2d 748.

Effect of deed not delivered during lifetime. — Children of decedent did not obtain fee simple title to real estate by deed which was not legally delivered and where it was not grantor's intention to divest grantor of title during grantor's lifetime as evidenced by grantor's retaining complete possession and control over the land until the time of grantor's death, making improvements on the property with community funds or the efforts of grantor and grantor's spouse, the decedent and decedent's spouse paying all taxes assessed against the land from 1930 to 1955. Martinez v. Archuleta, 1958-NMSC-072, 64 N.M. 196, 326 P.2d 1082.

Statutes of descent cannot be varied on equitable grounds. Wooley v. Shell Petroleum Corp., 1935-NMSC-008, 39 N.M. 256, 45 P.2d 927.

Survivor inherits all where intestate spouse and no children. — When a husband or wife dies leaving no will and no children, the survivor inherits all of the property of the deceased. 1916 Op. Att'y Gen. No. 16-1723.

Law reviews. — For comment, "Community Property-Power of Testamentary Disposition - Inequality Between Spouses," see 7 Nat. Resources J. 645 (1967).

For comment, "The Perils of Intestate Succession in New Mexico and Related Will Problems," see 7 Nat. Resources J. 555 (1967). For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

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 note, "Community Property - Appreciation of Community Interests and Investments in Separate Property in New Mexico: Portillo v. Shappie," see 14 N.M.L. Rev. 227 (1984).

For annual survey of New Mexico law of estates and trusts, see 19 N.M.L. Rev. 669 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Descent and Distribution §§ 115 to 143.

Effect on joint estate, community estate or estate by entireties, of death of both tenants in same disaster, 18 A.L.R. 105.

Treatment of widow's allowance and exemptions in computing share to which she is entitled under Statute of Distribution in case of death of husband intestate or of her election to take against will, 98 A.L.R. 1325.

What passes under provision of will that spouse shall take share of estate allowed or provided by law, or a provision of similar import, 36 A.L.R.2d 147.

Surviving spouse's right to marital share as affected by valid contract to convey by will, 85 A.L.R.4th 418.

26A C.J.S. Descent and Distribution §§ 48 to 60.

41 C.J.S. Husband and Wife § 186.