Can I elect to receive a life estate instead of an intestate share in New Mexico?

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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance specific to your situation.

Detailed Answer

Intestate Succession Under New Mexico Law

When a person dies without a valid will in New Mexico, their estate passes by intestate succession under the NMSA 1978, Chapter 45, Article 2. The surviving spouse and descendants divide the estate as follows:

  • If there are no surviving descendants, the spouse inherits the entire estate.
  • If all surviving descendants are also descendants of the surviving spouse, the spouse receives one-half and the descendants share the other half.
  • If there are surviving descendants who are not descendants of the spouse, the spouse takes one-half and the descendants inherit the remaining half.

Heirs at law take their shares in fee simple ownership, not as a life estate.

Life Estate Election

Unlike some states, New Mexico does not provide a statutory election for heirs or a surviving spouse to convert their intestate share into a life estate in real property. The Intestate Succession Act does not authorize a life-estate alternative. All beneficiaries receive their share as outright ownership.

To receive a life estate, the decedent’s will must specifically grant that interest. Absent a will, no statutory right exists to elect a life estate under NMSA 1978, § 45-2-102.

Alternatives and Practical Considerations

Heirs who wish to occupy or retain real property as a life estate may consider:

  • Family Settlement Agreement: All heirs can agree in writing to grant one heir a life estate in exchange for adjusted shares or compensation.
  • Partition by Agreement: Instead of physical division, heirs can allocate interests differently by mutual consent under NMSA 1978, § 45-2-107.
  • Voluntary Conveyance: An heir holding title in fee simple could convey a life estate interest to another heir, with remaindermen rights documented in a deed.

Each option requires clear written agreements and proper recording to avoid future disputes.

Helpful Hints

  • Review NMSA 1978, Chapter 45, Article 2 for detailed intestacy rules.
  • Discuss settlement options early to prevent family conflict.
  • Obtain title and deed searches to confirm property interests.
  • Consider mediation if heirs cannot agree on property division.
  • Consult a probate attorney to draft and record any life-estate deed or agreement.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney. See full disclaimer.