A. Upon the death of either spouse, one-half of the community property belongs to the surviving spouse, and the other half is subject to the testamentary disposition of the decedent, except that community property that is joint tenancy property under Subsection B of Section 40-3-8 NMSA 1978 shall not be subject to the testamentary disposition of the decedent.

B. Upon the death of either spouse, the entire community property is subject to the payment of community debts. The deceased spouse's separate debts and funeral expenses and the charge and expenses of administration are to be satisfied first from his separate property, excluding property held in joint tenancy. Should such property be insufficient, then the deceased spouse's undivided one-half interest in the community property shall be liable.

C. The provisions of the 1984 amendments to this section shall not affect the right of any creditor, which right accrued prior to the effective date of those amendments.

History: 1953 Comp., § 32A-2-804, enacted by Laws 1975, ch. 257, § 2-804; 1984, ch. 122, § 2; 1978 Comp., § 45-2-804, recompiled as 1978 Comp., § 45-2-805 by Laws 1993, ch. 174, § 64; recompiled as 1978 Comp., § 45-2-807 by Laws 2011, ch. 124, § 32.

Recompilations. — Laws 2011, ch. 124, § 32 recompiled former 45-2-805 NMSA 1978 as 45-2-807 NMSA 1978 and enacted a new 45-2-805 NMSA 1978, effective January 1, 2012.

Compiler's notes. — This section includes within its scope some of the functions of former 29-1-8 and 29-1-9, 1953 Comp.

Cross references. — For status of missing persons and death presumed by absence, see 45-1-107 NMSA 1978.

For intestate survivorship requirements, see 45-2-104 NMSA 1978.

The 1984 amendment, effective March 6, 1984, referred to in Subsection C are those effected by Laws 1984, ch. 122, § 2 that added the exception at the end of Subsection A and added Subsection C.

Federal tax liability. — One-half of the community property owned by husband and wife at the date of the death of the husband, who died intestate, was includible in his gross estate for federal estate tax purposes. Hurley v. Hartley, 255 F. Supp. 459 (D.N.M. 1966), aff'd, 379 F.2d 205 (10th Cir. 1967).

Transfer of assets rendered estate insolvent. — Since assets received by a widow under a will, which transfer rendered the estate insolvent, could be reached in the hands of the transferee by deceased's creditors under former 29-1-9, 1953 Comp., they could be reached by the federal government for the purpose of subjecting them to the tax liability of the transferor. United States v. Floersch, 276 F.2d 714 (10th Cir. 1960), cert. denied, 364 U.S. 816, 81 S. Ct. 46, 5 L. Ed. 2d 47 (1960).

Purpose of Subsection B of 45-2-805 NMSA 1978, subjecting the entire community to payment of community debts, is intended to protect third parties who have dealt in good faith with the community during its existence against dissipation of the estate by the survivor before outstanding debts were taken care of. In re Estate of Shadden, 1979-NMCA-078, 93 N.M. 274, 599 P.2d 1071, cert. denied, 93 N.M. 172, 598 P.2d 215, overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116 N.M. 254, 861 P.2d 935.

Community member's promissory note refers to community's personal property. — When a member of a community takes a promissory note from himself as a member of the community, he is charged with the knowledge that any document purporting to pledge the credit of the community can only refer to the community's personal property. In re Estate of Shadden, 1979-NMCA-078, 93 N.M. 274, 599 P.2d 1071, cert. denied, 93 N.M. 172, 598 P.2d 215, overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116 N.M. 254, 861 P.2d 935.

Joinder of wife as administratrix proper. — Where husband financed his purchase of a jeep, took out creditor life insurance and later sold jeep to third parties for $100 plus assumption of debt to finance company and upon death proceeds of policy were paid to finance company, it was not reversible error to allow widow, who sued purchasers for damages or rescission of sale, to make post-trial joinder of herself as administratrix of husband's estate. Smith v. Castleman, 1969-NMSC-166, 81 N.M. 1, 462 P.2d 135.

Community property is not liable for antenuptial debt of spouse. Wiggins v. Rush, 1971-NMSC-092, 83 N.M. 133, 489 P.2d 641.

Disposal of community property by will. — A husband may dispose of his interest in the community property by will. United States v. Floersch, 276 F.2d 714 (10th Cir. 1960), cert. denied, 364 U.S. 816, 81 S. Ct. 46, 5 L. Ed. 2d 47 (1960).

Law reviews. — 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 article, "Survey of New Mexico Law, 1979-80: Estates and Trusts," see 11 N.M.L. Rev. 151 (1981).

For note, "Community Property - Transmutation of Community Property: A Preference for Joint Tenancy in New Mexico?" see 11 N.M.L. Rev. 421 (1981).

For note, "Community Property - Spouse's Future Federal Civil Service Disability Benefits are Community Property to the Extent the Community Contributed to the Civil Service Fund During Marriage: Hughes v. Hughes," see 13 N.M.L. Rev. 193 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Community Property §§ 105, 106.

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

94 C.J.S. Wills § 88; 97 C.J.S. Wills § 1312.