A. Except as provided in Subsection B of this section, if a testator fails to provide in his will for any of his children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:

(1) if the testator had no child living when he executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will; or

(2) if the testator had one or more children living when he executed the will and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator's estate as follows:

(a) the portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator's then-living children under the will;

(b) the omitted after-born or after-adopted child is entitled to receive the share of the testator's estate, as limited in Subparagraph (a) of Paragraph (2) of Subsection A of this section, that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child;

(c) to the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children under the will; and

(d) in satisfying a share provided by Paragraph (2) of Subsection A of this section, devises to the testator's children who were living when the will was executed abate ratably. In abating the devices of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

B. Subsection A of this section does not apply if:

(1) it appears from the will that the omission was intentional; or

(2) the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

C. If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.

D. In satisfying a share provided by Paragraph (1) of Subsection A of this section, devises made by the will abate pursuant to Section 45-3-902 NMSA 1978.

History: 1953 Comp., § 32A-2-302, enacted by Laws 1975, ch. 257, § 2-302; 1977, ch. 121, § 6; repealed and reenacted by Laws 1993, ch. 174, § 18; 1995, ch. 210, § 6.

Official comments. — See Commissioners on Uniform State Laws official comment to 2-302 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 18 repealed former 45-2-302 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-302, and enacted a new section, effective July 1, 1993.

Compiler's notes. — This section is similar to former 30-1-7, 1953 Comp.

Cross references. — For omitted spouse, see 45-2-301 NMSA 1978.

The 1995 amendment, effective July 1, 1995, substituted "Subsection A of this section does not apply" for "Neither Subsection A or C of this section applies" at the beginning of Subsection B and deleted "Except as provided in Subsection B of this section" at the beginning of Subsection C.

Legislative purpose. — The purpose of 30-1-7, 1953 Comp. (repealed), is to deal with those situations where a descendant is unintentionally omitted or is unknown to the testator when the will is executed and the section is not applicable where the child is mentioned without a legacy or other provision being made for him. Mares v. Martinez, 1949-NMSC-066, 54 N.M. 1, 212 P.2d 772 (decided under former law).

Scope covers child who would inherit from intestate parent. — Former 30-1-7, 1953 Comp., relating to children omitted from will, covered any child who would inherit from an intestate parent. Gallup v. Bailey, 46 N.M. 344, 129 P.2d 56 (1942) (decided under former law).

Testator deemed intestate as to pretermitted child. — A testator who omits his child from his will is deemed to have died intestate as to such child or its descendants. Hagerman v. Gustafson, 1973-NMSC-058, 85 N.M. 420, 512 P.2d 1256 (decided under former law); Price v. Johnson, 1967-NMSC-130, 78 N.M. 123, 428 P.2d 978, appeal following remand, Price v. Atlantic Ref. Co., 1968-NMSC-180, 79 N.M. 629, 447 P.2d 509 (decided under former law).

Portion of estate to be intestate share. — A pretermitted child takes the portion of the testator's estate he would have taken if the parent had died intestate. 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 (decided under former law).

Probate cannot be contested where rights arise independent of will. — Where rights of pretermitted child arise outside of and independent of the will, probate of the will cannot be contested. 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 (decided under former law).

Uniform Probate Code provision distinguished. — The difference in wording between § 2-302 of the Uniform Probate Code and Subsection A of this section negates the Uniform Code's presumption that if a child or the child's issue born before execution of a will is not mentioned in the will of a testator, it is presumed that the testator intended to disinherit the child or issue. New Mexico requires the testator to satisfy one of the statutory requirements in order to disinherit even children born or adopted before the execution of the will. In re Estate of Hilton, 1982-NMCA-104, 98 N.M. 420, 649 P.2d 488 (decided under former law).

Affirmative indication of disinheritance required. — To disinherit a child, an affirmative, not negative, indication of intention must appear on the face of the will. In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539 (decided under former law).

Disinheriting possible if mentioning by name or clearly excluding as a class. — Since an omitted child or heir does not assert his rights by contesting the will but by claiming an intestate share of the decedent's estate, for the language of a will to meet the requirements of Subsection A(1), the clause must either mention the claimant by name or fairly and clearly express an intention on the part of the testator to exclude the claimant as a group or class. In re Estate of Hilton, 1982-NMCA-104, 98 N.M. 420, 649 P.2d 488 (decided under former law).

Clause held sufficient to disinherit. — A clause in a will leaving a nominal sum to anyone who claims to be an heir or contests the will is sufficient to disinherit the issue of one's child under the New Mexico Uniform Probate Code. In re Estate of Hilton, 1982-NMCA-104, 98 N.M. 420, 649 P.2d 488 (decided under former law).

Clause held insufficient to disinherit. — A declaration of a testator that "I have no children whom I have omitted to name or provide for herein" is not an intentional omission. In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539 (decided under former law).

Remembrance of person is not statement of relationship required. — Former 30-1-7, 1953 Comp., required only that a person bearing the relationship of child, children or descendants of a child or children be remembered in the will and not that such relationship be stated in the will. Mares v. Martinez, 1949-NMSC-066, 54 N.M. 1, 212 P.2d 772 (decided under former law).

Determination of intentional omission. — Under 30-1-7, 1953 Comp. (now repealed), the question of whether or not a child was intentionally omitted from the testator's will could only be answered with reference to the will itself, and not through recourse to extrinsic evidence. In re Will of Padilla, 1977-NMSC-095, 91 N.M. 160, 571 P.2d 817 (decided under former law).

Scope of inquiry. — "It appears from the will," in Subsection A(1), means that a court is bound by the contents of the will. Extrinsic evidence of the decedent's intention falls on the wayside. In re Will of Padilla, 1977-NMSC-095, 91 N.M. 160, 571 P.2d 817 (decided under former law).

Extrinsic evidence to show awareness of child's existence. — The trial court can properly receive extrinsic evidence to show the testator's awareness of a child's existence at the time he executed his will - since this goes to the issue of whether he had otherwise provided for him during his lifetime. In re Estate of Hilton, 1982-NMCA-104, 98 N.M. 420, 649 P.2d 488 (decided under former law).

Child can be disinherited without being mentioned in a will, unless it appears that the omission to mention such child occurred because of mistake or inadvertence. In re Estate of McMillen, 1903-NMSC-012, 12 N.M. 31, 71 P. 1083 (decided under former law).

New Mexico pretermitted child law applies despite Texas will execution. — Section 30-1-7, 1953 Comp. (repealed), governed rights of pretermitted child to New Mexico property even though the will was executed in Texas. Price v. Johnson, 1967-NMSC-130, 78 N.M. 123, 428 P.2d 978, appeal following remand, Price v. Atlantic Ref. Co., 1968-NMSC-180, 79 N.M. 629, 447 P.2d 509 (decided under former law).

Inheritance by daughter of pretermitted son. — A daughter of a deceased son, of whom no mention was made in the will, was entitled to a specified interest in the property which testator left. Rhodes v. Yater, 1921-NMSC-103, 27 N.M. 489, 202 P. 698 (decided under former law).

Paternity of illegitimate sons established despite evidence of impotency. — Paternity and rights of inheritance of illegitimate sons was established where evidence of impotency was insufficient as against evidence of conduct and consent to have name on birth certificate of the sons as father. Sanchez v. Torres, 1934-NMSC-026, 38 N.M. 556, 37 P.2d 805 (decided under former law).

Law reviews. — 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 annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).

For article, "Survey of New Mexico Law, 1982-83: Estates and Trusts," see 14 N.M.L. Rev. 153 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 642 to 659.

Intention of testator as regards child not provided for by will as affecting applicability of statutes to prevent disinheritance of children, 65 A.L.R. 472.

Nature of, and remedies for enforcement of, the interest which a pretermitted child takes by virtue of statute where parent leaves will, 123 A.L.R. 1073.

Illegitimate child as within contemplation of statute regarding rights of child pretermitted by will, or statute preventing disinheritance of child, 142 A.L.R. 1447.

Disinheritance provision or mere nominal bequest as affecting application of statute for benefit of pretermitted children, 152 A.L.R. 723.

What, other than express disinheritance or bequest, avoids application of statute for benefit of pretermitted or afterborn children, 170 A.L.R. 1317.

Adoption of child as revoking will, 24 A.L.R.2d 1085.

Statutory revocation of will by subsequent birth or adoption of child, 97 A.L.R.2d 1044.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.

Right of illegitimate grandchildren to take under testamentary gift to "grandchildren," 17 A.L.R.4th 1292.

Pretermitted heir statutes: what constitutes sufficient testamentary reference to, or evidence of contemplation of, heir to render statute inapplicable, 83 A.L.R.4th 779.

Adopted child as within class named in testamentary gift, 36 A.L.R.5th 395.

95 C.J.S. Wills § 317; 96 C.J.S. Wills §§ 1159, 1166.