Disclaimer: This article is for general informational purposes and does not constitute legal advice. Consult a qualified attorney to address your specific situation.
Detailed Answer
Under New Mexico law, a surviving spouse may request a family allowance to maintain basic support during probate. New Mexico Statutes Annotated (NMSA) 1978, Section 45-3-901, authorizes the court to grant a reasonable allowance for the surviving spouse and minor children. To evaluate this claim, the probate court requires proof of the marriage.
A certified marriage certificate is primary evidence of the marital relationship. If the original certificate is incomplete or missing, the court may question the surviving spouse’s status and delay or deny the allowance. You can address this issue by taking the following steps:
- Request a certified copy from the New Mexico Department of Health, Vital Records Bureau. Under the Vital Records Act (NMSA 1978, Chapter 24, Article 14), you can file an application and pay the required fee. See NMSA 1978 §24-14-1 et seq..
- Petition for a delayed or amended certificate if no record exists or the one on file is incomplete. Pursuant to NMSA 1978, Section 24-14-11, the court or Vital Records Bureau can accept alternative proof and issue a delayed certificate. See Delayed Certificates.
- Provide substitute proof of marriage under New Mexico Rules of Civil Procedure (NMRA) Rule 4-615. You may submit sworn affidavits from the officiant, witnesses, church or ceremony records, photographs from the wedding, or contemporaneous correspondence confirming the date and location.
- Include any available prenuptial or postnuptial agreements, joint financial statements, or shared tax returns that demonstrate a marital relationship.
Once you assemble sufficient proof, file a motion with the probate court to supplement your petition for allowance. The judge will review the evidence and determine whether to grant the family allowance under NMSA 1978 §45-3-901.
Helpful Hints
- Order multiple certified copies of your marriage certificate to avoid future delays.
- Keep digital scans of all vital records and correspondence related to your marriage.
- Contact the county clerk’s office where the marriage was registered for archival records and guidance.
- Gather contact information for witnesses who can attest to your marriage ceremony.
- Consult an attorney early in the probate process to address any evidentiary gaps.