A. If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

(1) costs and expenses of administration, including compensation of personal representatives and of persons employed by the personal representatives;

(2) reasonable funeral expenses;

(3) debts and taxes with preference under federal law;

(4) reasonable medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent;

(5) debts and taxes with preference under other laws of New Mexico; and

(6) all other claims.

B. No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.

History: 1953 Comp., § 32A-3-805, enacted by Laws 1975, ch. 257, § 3-805; 1976 (S.S.), ch. 37, § 12; 1995, ch. 210, § 42.

Official comments. — See Commissioners on Uniform State Law official comment to 3-805 UPC.

Compiler's notes. — This section includes within its scope some of the functions of former 31-8-10 and 31-8-11, 1953 Comp.

The 1995 amendment, effective July 1, 1995, in Subsection A, inserted "including" and substituted "persons employed by the personal representatives" for "attorneys" at the end of Paragraph (1); transferred similar provisions to those contained in former Paragraph (2) to Paragraph (4); and redesignated former Paragraphs (3) and (4) as Paragraphs (2) and (3).

Spousal support and attorney fees awarded after death of spouse. — In a divorce proceeding continued after the death of a spouse pursuant to 40-4-20 NMSA 1978 in which the court awards lump-sum spousal support and attorney fees, the final judgment is not a claim against the estate of the deceased spouse for purposes of the Probate Code's creditor's claims provisions of 45-3-805 NMSA 1978. Estate of Nauert v. Morgan-Nauret, 2012-NMCA-037, 274 P.3d 799.

Where the deceased spouse who filed for divorce in March 2006 died while the divorce action was pending; in September 2007, the probate court appointed a personal representative of the estate; in November 2007, the divorce court awarded the surviving spouse monthly spousal support from September 2007 and attorney fees and ordered the estate to pay the awards immediately; and the personal representative claimed that the awards were Class Six claims under 45-3-805 NMSA 1978, the awards were not claims under the Probate Code to which the creditors' claims provisions of 45-3-805 NMSA 1978 applied. Estate of Nauert v. Morgan-Nauret, 2012-NMCA-037, 274 P.3d 799.

Where a divorce proceeding was continued after the death of a spouse and the divorce court ordered the deceased spouse's estate to immediately pay a lump-sum amount for spousal support and attorney fees to the surviving spouse, the award did not violate the Federal Insolvency Act, 31 U.S.C. § 3713(a)(1)(B) which requires claims of the United States government to be paid first when the estate of the deceased debtor is not enough to pay all debts of the debtor, because the divorce court awards were not claims against the estate of the deceased spouse and the act did not apply. Estate of Nauert v. Morgan-Nauret, 2012-NMCA-037, 274 P.3d 799.

A claim for funeral and medical expenses of the decedent was a valid claim against the estate and was accorded priority in accordance with the provisions of this section. In re Estates of Salas, 1987-NMCA-018, 105 N.M. 472, 734 P.2d 250.

Priority of decedent's lien on specific property. — Expenses necessary to the administration of the estate are subject to the lien of a mortgage executed on specific property by the deceased in his lifetime; the justice of this rule is plain: the creditor merely gets the benefit of a contract made with the deceased. Shortle v. Mccloskey, 1935-NMSC-043, 39 N.M. 273, 46 P.2d 50.

Third party's expenses in operating decedent's business. — Where a third person furnishes supplies which are used by an executor or administrator in operating and conducting the business of the decedent, as well as money which is used in defraying the expenses of conducting such business, the third person is entitled to take the place and stead of the executor or administrator and to be likewise reimbursed therefor before the creditors are paid anything upon their accounts. Perez v. Gil's Estate, 1924-NMSC-014, 29 N.M. 313, 222 P. 907.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Meaning of phrase "last sickness" and the like in statutes giving preference to expenses, 9 A.L.R. 462.

When funeral expenses deemed ordered on personal credit rather than on credit of estate, 30 A.L.R. 444.

Expense of removing and reinterring remains as a funeral expense, 40 A.L.R. 1459.

State's prerogative right of preference at common law, 51 A.L.R. 1355, 65 A.L.R. 1331, 90 A.L.R. 184, 167 A.L.R. 640.

Foreclosure decree which ascertains amount of mortgage due or other claim as judgment within statute relating to rank of claims against decedent's estate, 57 A.L.R. 489.

Rank or preference of claim against insolvent estate with respect to stockholder's superadded liability, 92 A.L.R. 1040.

Expenses of preserving assets before appointment of executor or administrator as entitled to priority, 108 A.L.R. 393.

Priority in event of incompetent's death of claims incurred during guardianship over other claims against estate, 113 A.L.R. 402.

Judgment against executor or administrator, or levy of attachment or execution against him, as affecting rank of creditor's claims against estate or his rights in respect of property of estate, 121 A.L.R. 656.

Tombstone or monument as a proper charge against estate of decedent, 121 A.L.R. 1103.

Construction and application of statutory provisions as to classification or priority of claims against decedent's estate in respect of money or property received by decedent in trust or as a fiduciary, 125 A.L.R. 1487.

Rank of foreign judgment, or judgment of sister state, rendered in lifetime of debtor, in settlement of debtor's estate after his death, 128 A.L.R. 1400.

Personal claim of executor or administrator against estate, antedating death of decedent, 144 A.L.R. 953.

Amount of funeral expenses allowable against decedent's estate, 4 A.L.R.2d 995.

Family allowance granted widow as payable from community interests of decedent and widow, 9 A.L.R.2d 529.

Propriety of payment of funeral expenses of life beneficiary or life tenant out of corpus or estate under instrument providing for invasion of corpus or estate for support of such person, 18 A.L.R.2d 1236.

Reimbursement, from decedent's estate, of person other than personal representative or surviving spouse paying funeral expenses, 35 A.L.R.2d 1399.

Powers and duties of a public administrator, 56 A.L.R.2d 1183.

Liability for funeral expenses of married women, 82 A.L.R.2d 873.

Preference or priority of claims arising out of continuation of decedent's business by personal representative, 83 A.L.R.2d 1347.

Rent or its equivalent accruing after lessee's death as expense of administration of estate, 22 A.L.R.3d 814.

Construction of statutory provisions giving priority on distribution to claims for wages of servants, employees or the like, 52 A.L.R.3d 940.

34 C.J.S. Executors and Administrators § 458.