A. For purposes of intestate succession and allowances, and except as otherwise provided in Subsection B of this section, the following rules apply:

(1) an individual born before a decedent's death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period; and

(2) an individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.

B. This section does not apply if its application would cause the estate to pass to the state under Section 45-2-105 NMSA 1978.

History: 1953 Comp., § 32A-2-104, enacted by Laws 1975, ch. 257, § 2-104; 1976 (S.S.), ch. 37, § 1; repealed and reenacted by Laws 1993, ch. 174, § 7; 2011, ch. 124, § 11.

Official comments. — See Commissioners on Uniform State Laws official comment to 2-104 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 7 repealed former 45-2-104 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-104, and enacted a new section, effective July 1, 1993.

Cross references. — For definition of "survive", see 45-1-201 NMSA 1978.

For evidence standard, see 45-2-702 NMSA 1978.

The 2011 amendment, effective January 1, 2012, provided that an individual in gestation at decedent's death is deemed to be living at decedent's death if the individual lives one hundred twenty hours after birth.

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 23 Am. Jur. 2d Descent and Distribution § 110.

Decree directing distribution of estate to person who is dead, 25 A.L.R. 1563.

Time interval contemplated by provision of will or of statute of descent and distribution with reference to death of two persons simultaneously or approximately at same time, 173 A.L.R. 1254.