Quick answer

When someone dies in New Mexico without a will, their property passes by intestate succession. If the decedent is survived by children, the children (or their descendants) take the decedent’s share according to representation — commonly called “per stirpes” distribution. That means each surviving child takes an equal share, and if a child predeceased the decedent, that child’s descendants (grandchildren of the decedent) step into the predeceased child’s share and divide it among themselves.

Detailed answer — how succession among children works under New Mexico law

New Mexico’s intestate succession rules are found in the New Mexico Probate Code (see the statutes on the New Mexico Legislature website: NMSA 1978, Chapter 45). The key points you need to know are:

• Equal shares among living children: If the decedent is survived by two or more children and no one in that branch has predeceased the decedent, the children divide the decedent’s intestate estate in equal shares.
• Representation (per stirpes) for predeceased children: If a child of the decedent dies before the decedent but leaves surviving descendants (for example, grandchildren of the decedent), those descendants inherit the share their parent would have taken and split it among themselves. In practice, the estate is divided into as many equal shares as there are living children plus the number of deceased children who left descendants; each living child takes one share, and the descendants of a deceased child share that child’s one share.
• Adopted children and posthumous children: Adopted children are treated as natural children for intestate succession. Posthumous children (born after the parent’s death) are generally treated as descendants if born within the times allowed by statute or established case law; if you think this applies, you should raise it early in probate.
• Children born outside marriage: Children born out of wedlock can inherit if their parentage is established. That may require evidence or a court order establishing paternity.
• Stepchildren and foster children: Stepchildren and foster children do not inherit under intestacy unless they were legally adopted.

Illustrative examples

Example 1 — three living children: If the decedent leaves three living children and no spouse, each child receives one-third of the intestate estate.

Example 2 — one child predeceased with two children of their own: If the decedent had three children but one predeceased leaving two children (the decedent’s grandchildren), the estate is divided into three equal shares. Each surviving child receives one full share. The two grandchildren share equally the one share that would have gone to their deceased parent (so each grandchild gets one-sixth total).

What if there is also a surviving spouse?

Spousal shares can change how much the children receive. New Mexico is governed by the probate code on spousal and child shares (see the statutes in NMSA 1978, Chapter 45). In many intestacy situations, a surviving spouse will take a portion of the decedent’s estate and the children will split the rest. The exact split depends on whether property is community or separate property and on who the children are (for example, whether they are also children of the surviving spouse). Because community property and spousal-share rules can materially change an intestate distribution, consult the statutes or an attorney if a spouse survives the decedent.

Common issues that change how children inherit

• Whether the decedent left a surviving spouse (see spousal-share rules).
• Whether a child was legally adopted or whether paternity has been legally established for children born out of wedlock.
• Whether any heir disclaims (refuses) the inheritance or is convicted of wrongdoing that affects inheritance rights.
• Whether the estate assets are probate assets at all (some assets pass outside probate by beneficiary designation or joint ownership).

Practical steps for an heir, personal representative, or family member

1. Collect vital records: birth certificates, adoption decrees, death certificates, marriage certificates, and any documents proving parentage or paternity.
2. Identify all potential heirs: list all children, grandchildren, and any other possible descendants.
3. Determine which assets are probate property and prepare an inventory for the probate court.
4. If parentage is in question (for example, a child born out of wedlock), act quickly to preserve and present evidence or to ask the court to adjudicate parentage.
5. Consider getting a qualified probate attorney if the estate is substantial, if there is a surviving spouse with a community property claim, or if there are contested paternity/adoption issues.

Helpful hints

• Understand “per stirpes”: it means the descendants of a predeceased child inherit that child’s share. Use a simple family tree to visualize shares.
• Adopted children are heirs. Stepchildren are not heirs unless adopted.
• Get certified copies of key documents early. Probate courts require certified paperwork.
• If the estate is small, New Mexico has simplified or small-estate probate procedures—check the probate code and local court rules.
• If paternity is disputed, consider DNA and timely legal action because delays can complicate or bar a claim to intestate shares.
• Even if heirs agree informally, use the court process to transfer title cleanly—otherwise future disputes can arise when selling property or transferring accounts.

Where to read the law: New Mexico’s probate and intestacy statutes are in the New Mexico Statutes Annotated, Title 45 (Probate Code). See the statutes on the New Mexico Legislature website: https://www.nmlegis.gov/Legislation/Statutes (search for “probate” or “intestate succession” and chapter 45).