A. Any part of the intestate estate not passing to a decedent's surviving spouse pursuant to Section 45-2-102 NMSA 1978, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:

(1) to the decedent's descendants by representation;

(2) if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives;

(3) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;

(4) if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, on both grandparents' sides:

(a) half to the decedent's grandparents on one side equally if both survive, or to the survivor of them if only one survives, or to the descendants of the decedent's grandparents on this side or either of them if both are deceased, the descendants taking by representation; and

(b) half to the decedent's grandparents on the other side equally if both survive, or to the survivor of them if only one survives, or to the descendants of the decedent's grandparents or either of them if both are deceased, the descendants taking by representation; and

(5) if there is no surviving descendant parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on one side but not the other side, to the decedent's relatives on the side with one or more surviving members in the manner described in Paragraph (4) of this subsection.

B. If there is no taker under Subsection A of this section, but the decedent has:

(1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse's descendants by representation; or

(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.

C. For purposes of Subsection B of this section, the term "deceased spouse" means an individual to whom the decedent was married at the individual's death, and does not include a spouse who was divorced from, or treated pursuant to Section 45-2-802 or Section 45-2-804 NMSA 1978 as divorced from, the decedent at the time of the decedent's death.

History: 1953 Comp., § 32A-2-103, enacted by Laws 1975, ch. 257, § 2-103; 1977, ch. 121, § 3; repealed and reenacted by Laws 1993, ch. 174, § 6; 2011, ch. 124, § 10; 2017, ch. 41, § 14.

Repeals and reenactments. — Laws 1993, ch. 174, § 6 repealed former 45-2-103 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-103, and enacted a new section, effective July 1, 1993.

The 2017 amendment, effective July 1, 2017, revised the language for the passing of property to a decedent's heirs; in Subsection A, Paragraph A(4), in the introductory sentence, after "survived by", deleted "on both the paternal and maternal sides", and after "grandparents", added "on both grandparents' sides", in Subparagraph A(4)(a), after "to the decedent's", deleted "paternal", after "grandparents", added "on one side", after "if both survive", added "or", after "or to the", deleted "surviving paternal grandparent" and added "survivor of them", after "of the decedent's", deleted "paternal", and after "grandparents", added "on this side", in Subparagraph A(4)(b), after "to the decedent's", deleted "maternal", after "grandparents", added "on the other side", after "survive", added "or", after "or to the", deleted "surviving maternal grandparent" and added "survivor of them", and after "of the decedent's", deleted "maternal", and in Paragraph A(5), after "descendants of grandparents", deleted "on the paternal but not the maternal side, or on the maternal but not the paternal" and added "on one side but not the other".

The 2011 amendment, effective January 1, 2012, clarified the rules of inheritance by paternal and maternal grandparents and their descendants; provided rules of inheritance by descendants of a deceased spouse if the decedent has no surviving descendants, grandparents, or descendants of grandparents; and defined "deceased spouse".

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 N.M. 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. Therefore, 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.

Quiet title action. — The record showed that plaintiffs in quiet title action were the surviving children or grandchildren of the deceased and that title vested in them by intestate succession (45-2-103 NMSA 1978), and evidence supported the trial court's finding that defendants receipt purporting to evidence a sale of the property was a forgery. Martinez v. Martinez, 1997-NMCA-096, 123 N.M. 816, 945 P.2d 1034.

Intestate dying without lineal descendants dies leaving no issue. — An intestate who dies without lineal descendants, however many children may have predeceased him or her, dies "leaving no issue." In re Vigil's Estate, 1934-NMSC-052, 38 N.M. 383, 34 P.2d 667.

Spouse of a deceased child is not considered "issue" within the meaning of this section (former 29-1-13, 1953 Comp.). In re Vigil's Estate, 1934-NMSC-052, 38 N.M. 383, 34 P.2d 667.

Child adopted by stepfather may not inherit from natural paternal grandparent. — Where child was adopted by mother's husband (child's stepfather) after child's natural father's death but before paternal grandmother's death, adopted child could not inherit from her grandmother (her natural father's mother). In re Estate of Holt, 1981-NMSC-011, 95 N.M. 412, 622 P.2d 1032.

Distribution of estate of unmarried decedent without issue. — Former 29-1-13, 1953 Comp., relating to dying without issue or spouse applied to the estate of an unmarried decedent without issue. Harrison v. Harrison, 1916-NMSC-006, 21 N.M. 372, 155 P. 356.

Interest of pretermitted child does not pass through executor. — The interest of a pretermitted child descends directly to the child at the instant of the testator's death and does not pass to or through the executor. Dunham v. Stitzberg, 1948-NMSC-037, 53 N.M. 81, 201 P.2d 1000, overruled on other grounds by In re Estate of Conley, 1954-NMSC-112, 58 N.M. 771, 276 P.2d 906.

Illegitimate children may inherit and be inherited from. — Illegitimate child of illegitimate mother may inherit from his uncle on his mother's side, where the uncle has never married, has no other blood relation and his mother and mother of the illegitimate child have died before the uncle. State v. Chavez, 1938-NMSC-056, 42 N.M. 569, 82 P.2d 900.

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

For annual survey of New Mexico law relating to estates and trusts, see 12 N.M.L. Rev. 363 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Descent and Distribution §§ 13, 18, 49, 53, 64.

Succession to property as affected by death in common disaster in absence of presumption or proof of survivorship, 43 A.L.R. 1348.

Right of one other than grandchild of intestate to take under statute providing that if any child of intestate be dead, the heirs of such child shall inherit his share, 93 A.L.R. 1511.

Particular articles within statute giving to surviving spouse or children certain specific items of personal property of deceased, 158 A.L.R. 313.

Descent and distribution to nieces and nephews as per stirpes or per capita, 19 A.L.R.2d 191.

Family settlement of intestate's estate, 29 A.L.R.3d 174.

Descent and distribution: rights of inheritance as between kindred of whole and half blood, 47 A.L.R.4th 561.

26A C.J.S. Descent and Distribution §§ 1, 21, 30 to 48, 83, 88; 96 C.J.S. Wills § 711.