A. An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not terminate the status of spouse is not a divorce for purposes of this section.

B. For purposes of Chapter 45, Article 2, Parts 1 through 4 and Section 45-3-203 NMSA 1978, a surviving spouse does not include:

(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as spouses;

(2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or

(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights, including a property division judgment entered pursuant to the provisions of Section 40-4-20 NMSA 1978.

History: 1953 Comp., § 32A-2-802, enacted by Laws 1975, ch. 257, § 2-802; repealed and reenacted by Laws 1993, ch. 174, § 61; 1995, ch. 210, § 22; 2019, ch. 221, § 3.

Official comments. — See Commissioners on Uniform State Law official comment to 2-802 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 61 repealed former 45-2-802 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-802, and enacted a new section, effective July 1, 1993.

Cross references. — For annulment of prohibited marriages, restrictions, see 40-1-9 NMSA 1978.

For extent of alteration of legal relations by separation decree, see 40-2-8 NMSA 1978.

For failure to divide property on divorce, property unaffected, subsequent division, see 40-4-20 NMSA 1978.

The 2019 amendment, effective July 1, 2019, made certain technical amendments; in Subsection A, after "status of", deleted "husband and wife" and added "spouse"; and in Subsection B, Paragraph B(1), after "live together as", deleted "husband and wife" and added "spouse".

Applicability. — Laws 2019, ch. 221, § 7, provided that the provisions of this act apply to:

A. a governing instrument created before, on or after July 1, 2019;

B. a judicial proceeding commenced on or after July 1, 2019; and

C. a judicial proceeding commenced before July 1, 2019, unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision does not apply and the previous law applies.

The 1995 amendment, effective July 1, 1995, added the language beginning "including a property" at the end of Paragraph B(3).

Spouse not surviving spouse. — Where the decedent's spouse was a party to the final decree dividing marital property entered pursuant to 40-4-20 NMSA 1978, and decedent died before a final decree of divorce was entered, the spouse was not a "surviving spouse" for purposes of the distribution of the decedent's estate, because 45-2-802B(3) NMSA 1978 of the Uniform Probate Code specifically excludes from the definition of "surviving spouse" such an individual. Karpien v. Karpien 2009-NMCA-043, 146 N.M. 188, 207 P.3d 1165.

Pending divorce proceeding at time of death. — Since there was a pending divorce proceeding between decedent and decedent's spouse at the time of decedent's death, the district court erred by prematurely adjudicating the validity of the will and trust and by prematurely admitting the will to probate prior to the completion of the pending divorce proceedings since, under 45-2-802B(3) NMSA 1978, the decedent's spouse would be precluded as a surviving spouse in the event of a judgment or decree terminating all marital property rights pursuant to 40-4-20B NMSA 1978 and such a judgment or decree would serve to revoke all governing instruments pursuant to 45-2-804B(1)(a) NMSA 1978, so that decedent's spouse would have no interest in decedent's estate as a surviving spouse. Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701, aff'd in part, rev'd in part, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Property rights arising from relationship of couple cohabiting without marriage, 69 A.L.R.5th 219.

Divorce or separation as affecting person entitled to devise or bequest to husband, wife or widow, 75 A.L.R.2d 1413.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce, 74 A.L.R.3d 1108.

Husband's death as affecting periodic payment provision of separation agreement, 5 A.L.R.4th 1153.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse, 31 A.L.R.4th 1190.

95 C.J.S. Wills §§ 293, 564.