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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Emancipated Minors

10/06/2005
1:05 PM
Merri Rudd

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: I was wondering if an emancipated minor can make a will? L.F., Albuquerque

What an intriguing question! I researched New Mexico's laws covering emancipated minors. Emancipated minors are persons over age sixteen who have entered into a valid marriage, or are on active duty with any U.S. armed forces, or have received a declaration of emancipation from a court.

A person sixteen or older may be declared an emancipated minor for one or more of the purposes set out below if he or she is willingly living separate and apart from the parents, is managing his or her own financial affairs, and the court finds it is in the minor's best interest to be emancipated.

Probate courts do not have jurisdiction to emancipate a minor; only district courts have such jurisdiction.

Regarding your question, New Mexico's Probate Code states, "An individual eighteen or more years of age who is of sound mind may make a will." This seems pretty straightforward except that the law considers emancipated minors to be "the age of majority," i.e., eighteen, for certain reasons. The law allows emancipated minors to:
 

  • Consent to medical, dental or psychiatric care without parental consent, knowledge, or liability;
  • Enter into binding legal contracts;
  • Sue and be sued
  • Keep one's own earnings;
  • Establish one's own residence;
  • Buy or sell real property;
  • End vicarious liability of the minor's parents for the minor's torts (unless they loan him their car or have another agency relationship); and,
  • Enroll in any school or college.

You may notice that making a will and registering to vote are not included on the list. Although other states allow emancipated minors to make wills, I believe that, in New Mexico, an emancipated minor cannot make a will until he or she reaches the age of eighteen.

Instead, New Mexico's laws of intestate succession would apply. If an emancipated minor died and had a surviving spouse, the spouse would inherit the community estate.

If an emancipated minor died and had no surviving spouse, but had surviving children, the children would inherit equal shares of the estate.

If an emancipated minor died and had no surviving spouse or children, the surviving parents of the minor would be next in line to inherit under intestate law. Parents inherit equal shares of the estate if both survive, or all if one parent has died. This intestate result could prove to be ironic if the minor was estranged from the parents. For example, the news sometimes contains stories of child actors seeking emancipation when a parent has mismanaged the child's earnings.

If there were no surviving spouse, children, or parents, then, under New Mexico's intestate laws, the emancipated minor's brothers and sisters would inherit equal shares of the estate, by representation. If one sibling had died, that sibling's share would pass to his or her children, if any, and, if none, to the other siblings.

Note to younger readers: do not make the mistake of believing that wills and health care instructions do not apply to you. Everyone eighteen and older should think about these serious issues and record their wishes in writing.



© 2005, Albuquerque Journal, All Rights Reserved 

Appeared October 6, 2005, Albuquerque Journal, Business Outlook 
Reprinted with permission

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