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Court of Wills, Estates & Probate

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

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Intestate Succession, Part 1

2:59 PM
Merri Rudd

Q: I've read that under intestate succession, regarding separate property, the spouse is entitled to 1/4 of the estate if there is surviving issue of the decedent. Is this true? R.S.

Intestate, "interstate" without the "r," the "Big I" of probate law. Intestate is a word not many people know, but it can become quite important when someone dies. Intestate means dying without a valid will.

New Mexico's laws of intestate succession list who inherits the property if no valid will exists. The surviving spouse's share of a decedent's intestate estate depends on whether the property is the separate or community property of the deceased spouse.

Separate property may be:

  • gifts or inheritances kept separate by the recipient spouse;
  • property acquired before the marriage and kept separate after marriage; or,
  • property that both spouses agree in writing is separate.

Under intestate law, if the decedent has children, one-quarter of the separate property passes to the surviving spouse. The remaining three-quarters passes to the deceased spouse's children in equal shares (the law calls these children "surviving issue"). If one or more children have died, the deceased children's children, if any, split the deceased children's shares. If the deceased spouse has no children, then all of the separate property passes to the surviving spouse.

This "one-quarter to the surviving spouse" rule can cause problems. For instance, sometimes a husband (more rarely a wife) owns a house, titled as his sole and separate property, before the marriage. The couple marry, have children, and live in the house for many years. The husband dies without a will. Who owns his house now? Wife, one-quarter, children, three-quarters. Often the children will deed their shares back to their mother, but sometimes the children with the three-quarters shares seek to force their mother from the home.

How could the husband have avoided this problem? He could have executed a will leaving all of his separate property to his surviving spouse.

The intestate succession rules for community property are different. Community property is all property, other than separate property, acquired by the spouses during the mar-riage from the earnings or efforts of either spouse. Community property be-longs one-half to each spouse, no matter who earns the money used to purchase the property and regardless of whose name is on the property.

Under intestate laws, a deceased spouse's one-half share of the community property passes to the sur-viving spouse. If, however, the deceased spouse had a will, (s)he could leave his or her half of the community property to whomever (s)he wished. Most often, spouses leave their community property to each other in a will, but occasionally, for tax planning purposes, animosity, or other reasons, they may leave it to their children, charities, or other recipients.

© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved

Appeared June 13, 2002 Albuquerque Journal, Business Outlook
Reprinted with permission

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