Short answer

Yes. If a divorce was not finalized before a person died, the person who is still legally married at the time of death is generally treated as the surviving spouse for purposes of New Mexico probate and intestate succession. That means the estranged spouse can typically make claims against the decedent’s estate, unless a court has already entered an order that changes marital status or property rights.

How New Mexico law treats marital status at death

New Mexico treats marital status at the time of death as the controlling fact. A filing for divorce that has not produced a final decree usually does not end the legal spousal relationship. In practical terms:

• If the divorce decree was not final when the person died, the person who filed for divorce remains a legal spouse.
• A surviving legal spouse can inherit under intestate succession, exercise rights under the decedent’s will (for example, challenge or claim an elective or statutory share), and may be entitled to family allowance or exempt property during probate.
• If a final divorce decree was entered before death, the former spouse is not a surviving spouse and normally cannot claim as a spouse under the estate.

For the statutory framework that governs descent and distribution and other probate rules, see the New Mexico statutes on wills, estates, and succession at the New Mexico Legislature website: https://www.nmlegis.gov/Legislation/Statutes

Important distinctions that affect a claim

Several factors change how a claim by an estranged spouse will play out. Check each of these carefully:

• Property classification (community vs. separate): New Mexico is a community property state for many marital property issues. Community property rules mean the surviving spouse may already own one-half of community property outright. Property titled jointly or owned as tenants by the entirety (if applicable) may pass outside probate to the joint owner.
• Title and beneficiary designations: Accounts with payable-on-death (POD) designations, life insurance, or retirement plan beneficiaries pass to the named beneficiary regardless of the will or intestacy—unless state law provides otherwise. If the estranged spouse is a named beneficiary, they could receive those assets unless a beneficiary change or court order prevents it.
• Wills and revocation rules: Many states automatically revoke certain provisions in a will upon divorce. Whether and when that happens depends on New Mexico statute and case law; generally, the operative question remains whether the divorce was final before death. Check the applicable statutes and consult counsel about whether a will’s spouse provisions survive a pending but unfinalized divorce.
• Pending court orders: If the divorce case included temporary orders dividing property or awarding temporary support, those orders may affect immediate rights but generally do not terminate marital status until a final decree.

What the estranged spouse can typically do in probate

If the divorce was not final, the estranged spouse will usually have many of the same options any surviving spouse has:

• File a claim in probate to ask for intestate shares or to challenge the will.
• Claim exempt property and request a family allowance for support during the probate process.
• Assert rights to the decedent’s half of community property.
• Enforce or challenge beneficiary designations where state law or unusual circumstances permit.

New Mexico probate procedures, including how to present claims and request allowances, are governed by the state’s probate statutes and local court rules. For information on probate practice and filing in New Mexico courts, visit the New Mexico Courts’ probate information pages: https://nmcourts.gov

Typical defenses the estate or other heirs might raise

An estate or other heirs may oppose a claim by an estranged spouse using these arguments:

• The divorce was final before death (produce the decree).
• Property passes outside probate (joint title, beneficiary designation, or trust).
• The spouse has been legally separated under a court order with effective property divisions that preclude a later claim.
• There are written agreements (e.g., prenuptial or separation agreements) that changed marital property rights.

Practical steps to protect your rights or evaluate a claim

1. Confirm the exact marital status at the moment of death: obtain the death certificate and check the divorce docket or decree. If no final decree appears on the court record, the spouse likely remains legally married.
2. Identify titled assets, beneficiary designations, and any trust documents. These frequently determine who receives specific assets regardless of the probate outcome.
3. Check for temporary or final court orders in the divorce proceeding. A final decree ends the marriage; temporary orders usually do not.
4. File appropriate probate paperwork quickly. If you are an estranged spouse wanting to protect rights, timely filing preserves claims. If you represent the estate, act to inventory and notify potential heirs and claimants.
5. Consult a New Mexico probate attorney to analyze how community property rules, beneficiary designations, and any separation agreements apply to the estate.

Helpful hints

• Do not assume filing for divorce ends marital rights — only a final divorce decree does.
• Look first at titles and beneficiary forms; those often control distribution of specific assets.
• Gather and preserve court records from the divorce case and any prenuptial or separation agreements.
• If you are a fiduciary for the estate, get counsel early to avoid improper distributions and to respond properly to a surviving spouse’s claim.
• If you are the estranged spouse, act quickly—probate deadlines can bar late claims.