What rights does a surviving spouse have in New Mexico when a spouse dies without a will?

Disclaimer: This information is educational only and is not legal advice. For advice about your particular situation, contact a licensed New Mexico attorney.

Detailed answer — your core rights and the steps you can take

When a spouse dies without a will (intestate) in New Mexico, several basic legal rules determine who controls decisions about the estate and who receives the decedent’s property. Two separate but related topics matter: (1) who inherits the decedent’s property under New Mexico intestacy law, and (2) who can make decisions and control estate property during probate and administration.

1. Community-property and separate-property basics

New Mexico is a community-property state. That means property acquired during the marriage is generally community property and each spouse ordinarily owns a one-half interest in community property. The surviving spouse typically already owns the surviving half of community property, so only the decedent’s one-half share is part of what passes by intestacy.

Separate property (property owned by the decedent before marriage, gifts or inheritances to the decedent alone, or property properly transmuted to separate property) is distributed under intestacy rules for separate assets.

2. Who inherits when there is no will

Intestate distribution depends on who the decedent’s surviving relatives are (children, parents, siblings, etc.). New Mexico’s intestacy rules lay out that order and the shares each class of heir receives. The specific shares turn on facts (for example: whether the decedent had children who are also the children of the surviving spouse, or children by another partner).

For the specific statutory scheme, see New Mexico’s intestate succession statutes (NMSA 1978, Chapter 45, Article 2). You can review the statutes and how they allocate shares here: New Mexico Legislature – Statutes (Title 45/Intestate Succession) and the New Mexico Courts probate information page:

New Mexico Courts – Probate and Estate Information
New Mexico Compilation Commission (NMSA 1978) — see Chapter 45 (Probate & Estates) for intestate succession provisions.

3. Who may make decisions about the estate and how to be appointed

If the decedent had not named an executor, the probate court will appoint a personal representative (executor/administrator). New Mexico law and usual probate practice give priority to certain people to be appointed. A surviving spouse generally stands at or near the top of the priority list to serve as personal representative.

If family members are making decisions and excluding you, here are your key options:

Petition the probate court to open administration and ask to be appointed personal representative. The court’s appointment makes you the legal decision-maker for the estate’s administration.
If someone else already was appointed and you believe they are not acting properly, you can file objections or a petition to remove or replace the personal representative for cause.
If assets are being hidden, taken, or dissipated, you can ask the probate court for temporary relief (a restraining order, an inventory, or turnover of assets) while the court resolves administration and appointment disputes.

4. Access to money, bank accounts, and property

Banks and institutions often freeze accounts when they learn of a death. If accounts are community property, your ownership of the surviving half is generally recognized. For the decedent’s half, institutions will typically require probate or an affidavit (if the estate qualifies as a small estate) before releasing funds. If family members refuse to provide account information or try to move money, ask the probate court for assistance and seek counsel promptly.

5. What to gather and immediate practical steps

Start by collecting key documents and information. That will help you petition the court and protect assets:

Certified copies of the death certificate
Marriage certificate
List of bank accounts, brokerage accounts, safe-deposit boxes, titles to vehicles and real estate, and insurance policies
Recent statements, bills, and mortgage information
Any pre-death correspondence that suggests the decedent’s intentions (even if not a formal will)

6. When the family “cuts you out” — legal remedies

If family members try to exclude you from decisions or move assets:

File a petition for appointment as personal representative if no administration exists.
If someone else was appointed without proper notice to you, you may be able to object for lack of notice or for failure to follow statutory priority.
If assets were transferred improperly after death, petition the court for recovery and temporary injunctive relief.
Ask the court to compel an inventory and account if a personal representative refuses to disclose estate assets or actions.

7. Other legal and financial consequences

Surviving spouses may be eligible for certain survivor benefits (Social Security survivor benefits, retirement plan survivor options). Taxes and creditor claims also affect what ultimately passes through intestacy. Creditors typically have a limited time to make claims against the estate during probate.

Helpful hints — practical steps and smart moves

Act quickly. If you suspect assets are at risk, file for appointment or emergency relief with the probate court right away.
Get several certified death certificates — banks and agencies ask for them.
Call the county probate court clerk where the decedent lived to ask about opening an estate and the forms you need.
If the estate seems small, ask whether a small-estate affidavit or simplified procedure is available in New Mexico.
Keep detailed written records of every contact with family members, banks, and anyone else about estate assets.
Don’t sign documents or release claims without understanding the consequences — you may be asked to sign waivers or releases that affect your legal rights.
Consider mediation if family conflict is high and assets aren’t immediately at risk; courts sometimes encourage settlement over litigation.
Talk to a New Mexico probate or estate attorney for an assessment. Many offer limited-scope consultations or hourly help to do just what you need (e.g., prepare and file probate paperwork).
Check statutes and local court forms: use the New Mexico Courts probate information page for forms, procedures, and court-specific rules: https://www.nmcourts.gov/probate/.
Review New Mexico’s probate and intestate succession statutes for the legal text (NMSA 1978, Chapter 45): see the official state statutes resource at the New Mexico Compilation Commission and legislature pages for the exact statutory language.

When to call an attorney

Hire an attorney if:

Family members are moving or hiding assets.
You are unsure how to open probate or want to be appointed as personal representative but face opposition.
Creditor claims appear, or complex tax issues are at stake.
The estate includes real estate, business interests, or contested debts or heirship claims.

Even a short, focused meeting with a probate attorney can show you the fastest path to secure your rights and stop improper transfers.

Key resources

New Mexico Courts — Probate and Estate Information: https://www.nmcourts.gov/probate/
New Mexico statutes and code resources (NMSA 1978, Chapter 45 on Estates & Probate): https://www.nmcompcomm.us/ (search Chapter 45: Intestate Succession and Probate provisions)

If you want, tell me a few facts (are there children? were you and the decedent married long-term? do you suspect assets were removed?) and I can outline the likely steps you would need to take in your county and what paperwork you will likely file.