Can I force a surviving spouse to sell the decedent’s house and distribute the proceeds under New Mexico law?

Short answer: Possibly — but it depends on whether the house is part of the probate estate, who is the personal representative named in the will (or appointed by the court), whether the surviving spouse has statutory rights (such as homestead, exempt property, family allowance, or an elective share), and whether the probate court approves a sale. In New Mexico, the probate court enforces wills and controls estate administration, and the court can order a sale if the personal representative follows required procedure and the sale does not improperly cut off the surviving spouse’s lawful rights.

Detailed answer — steps, legal basis, and what to expect

This is a plain-language guide to how the process normally works in New Mexico. It assumes the decedent left a will that directs the house be sold and the proceeds distributed to beneficiaries, and that a surviving spouse is resisting that sale. Because probate is controlled by statute and court rules, the right way to proceed is through the probate court in the county where the decedent lived.

1. Confirm whether the house is part of the probate estate

Not every asset goes through probate. If the house passed outside probate (for example, by joint tenancy with right of survivorship, a transfer-on-death deed, or if the house was owned in a way that gives the spouse immediate title), the will’s directions cannot force a sale of property that is already owned by someone else at the time of death. If title did not automatically pass, the house is likely a probate asset and subject to administration.

2. Identify the personal representative and open (or review) the probate file

The person named in the will as personal representative (executor) must be appointed by the probate court. The personal representative has the authority to collect assets, pay debts and taxes, and, with court approval when required, sell estate property. If no representative has been appointed, an interested person (including the surviving spouse or a beneficiary) can petition the probate court for appointment.

3. Check the surviving spouse’s statutory rights

New Mexico law gives a surviving spouse certain protections that can affect a forced sale of the home. Common rights include a homestead allowance, exempt personal property, and a family allowance to provide for immediate living expenses during administration. The spouse may also be able to claim an elective share or a statutory portion of the estate that cannot be completely defeated by a will. Those rights can limit or delay the sale or require that the spouse be paid from sale proceeds.

For the text of New Mexico’s probate statutes, see the New Mexico statutes (Chapter 45 – Probate): https://www.nmlegis.gov/. You can also find probate court information and forms at the New Mexico courts site: https://www.nmcourts.gov/.

4. If the house is in the estate and the will directs sale, the personal representative should petition the court to authorize the sale

The typical process:

• The personal representative files a petition in probate asking the court to authorize sale of the real property. The petition explains why the sale is necessary or advisable (to pay debts, distribute proceeds, avoid waste, etc.).
• The petition must notify interested parties (including the surviving spouse and beneficiaries) and allow them an opportunity to object.
• If no valid objections exist, the court will usually authorize the sale — often with requirements such as an appraisal, sale by public auction or court-approved private sale, and reporting back to the court with a proposed sale contract and accounting.

5. If the surviving spouse refuses to cooperate, there are court remedies

If the spouse refuses to consent to a sale but the house is a probate asset and the court has authorized sale, the court can order the sale. If the spouse claims an ownership interest or a statutory right (for example, that the house is homestead or passed outside probate), the spouse can file objections or counterclaims. Common remedies and actions include:

• Motion to compel the personal representative to sell or to enforce the terms of the will.
• Motion for a court order authorizing sale despite the spouse’s refusal.
• Partition actions or other quiet-title remedies if title is disputed or shared.
• Appointment of a receiver to protect or sell the property where necessary to preserve estate assets.

6. How distribution of proceeds works

Once the court approves the sale and the property is sold, the personal representative must pay valid debts, taxes, funeral expenses, and court-ordered allowances (including any statutory spouse allowances). After those claims are paid and after court approval of the final accounting, the remaining proceeds are distributed according to the will and the court’s orders.

7. Practical timelines and costs

Probate timelines vary. Minor sales and uncontested administrations can finish in months; contested matters (especially those involving disputes over homestead or elective claims) can take a year or more. Court fees, appraisal costs, legal fees, and possibly commission for sale all reduce the amount available to beneficiaries.

8. Alternatives to immediate court action

Because litigation is costly and slow, consider alternatives first:

• Negotiation with the spouse — perhaps a buyout where the spouse buys out other beneficiaries or agrees to accept a cash payment.
• Mediation — many probate courts encourage or require mediation for estate disputes.
• Consent sale — beneficiaries and the spouse can execute a written agreement and ask the court to approve the agreed sale to avoid contested litigation.

When you need a lawyer

If the spouse is asserting ownership, homestead, or elective-share claims; if title is unclear; or if the estate is contested, hire a probate attorney experienced in New Mexico estate law. A lawyer can:

• Review the will and title documents.
• Assess the spouse’s statutory rights and any risk that the spouse’s claim will defeat the will’s direction.
• File the necessary probate petitions, motions, and objections, and represent you at hearings.
• Negotiate consensual resolutions (buyout, deferred distribution, or settlement) and draft binding agreements.

Relevant New Mexico legal resources

• New Mexico statutes and legislative resources: https://www.nmlegis.gov/ (search “Probate Code” or “Chapter 45”).
• New Mexico Courts — probate information and local court contacts: https://www.nmcourts.gov/.
• County probate clerk’s office — to inspect filings, petitions, and the estate docket in the county where the decedent lived.

Helpful hints

• Act quickly. Statutory deadlines and timetables for filing claims or objections can bar your rights if you wait too long.
• Get certified copies of the death certificate, the will, and the deed. These documents are essential for opening probate and proving estate ownership.
• Check title records at the county clerk or assessor. That will help determine whether the house passed outside probate.
• Ask the personal representative for an accounting if you are a beneficiary and suspect the estate is not being administered properly.
• Keep detailed records of communications, offers, and notices in case the dispute goes to court.
• Consider a temporary agreement (for example, allowing the spouse to live in the home for a limited time in exchange for a release) to avoid immediate litigation while the estate is settled.
• Explore mediation or settlement before filing expensive contested motions. Courts often favor negotiated, efficient settlements.

Next practical steps: (1) Obtain the will and deed; (2) confirm whether probate has been opened and who is the personal representative; (3) determine whether the house is a probate asset; and (4) consult a New Mexico probate attorney to evaluate statutory spouse rights and to prepare any necessary petitions or settlement documents.

Disclaimer: This article is for general informational and educational purposes only. It does not provide legal advice, create an attorney-client relationship, or predict outcomes in any particular case. For advice about a specific situation, consult a licensed New Mexico attorney.