the Probate Judge—Emancipated Minors
Rudd, appeared October 6, 2005, Albuquerque Journal, Business Outlook
Reprinted with permission
- 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:
to medical, dental or psychiatric care without parental consent, knowledge,
into binding legal contracts;
one's own earnings;
one's own residence;
sell real property;
liability of the minor's parents for the minor's torts (unless they loan
him their car or have another agency relationship); and,
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
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
2005, Albuquerque Journal, All Rights Reserved