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Court of Wills, Estates & Probate

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

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Revocation by Divorce

1:08 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.

Readers, I thought of another way that a will can be revoked-by divorce or annulment. Bequests made to an ex-spouse in a will executed prior to a divorce or annulment are revoked under New Mexico's laws. Nominations of an ex-spouse to serve as a personal representative, executor, trustee, conservator, agent or guardian for the former spouse are similarly revoked upon divorce or annulment.

This method only revokes the portions of the will that pertain to the ex-spouse. The rest of the will would remain in effect unless it was revoked by a new will, codicil, or some other revocatory act discussed in previous columns.

Divorce or annulment also excludes an ex-spouse from inheriting under the terms of a payable on death (POD) accounts, transfer on death (TOD) accounts, other beneficiary accounts, such as life insurance, or joint tenancy property. Specific to joint tenancies, New Mexico law states that a divorce or annulment of a marriage "severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses into tenancies in common."

There is an exception to the automatic revocation rule. The terms of a divorce decree, court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment may mandate that the ex-spouse receive life insurance, pension benefits, or other assets from a former spouse. The terms of court orders or contracts, such as pre-nuptial and post-nuptial agreements, should not be affected by the automatic revocation rule.

While revocation is the general rule, some people want to include an ex-spouse in a will. If this is the case, people should update their wills after a divorce to expressly state their wishes to include the ex-spouse in spite of the divorce.

Q: Where is the Probate Court? We looked in all those courthouses along Lomas Boulevard and could not find you.

Thanks for trying. The other courthouses you found are the U.S. District Court (federal court), the Second Judicial District Court, and the Bernalillo County Metropolitan Court. Of those three, only the Second Judicial District Court can accept probate cases.

The county, not the judiciary, funds our court and provides staff, space and supplies. The Bernalillo County Probate Court is downtown on the sixth floor of the City-County building, just west of Civic Plaza, not in one of the several courthouses along Lomas. The official address of the Probate Court is One Civic Plaza NW, between 3rd and 5th Streets, and between Tijeras and Marquette.

The City-County building is the angular, 11-story white building that houses the mayor, city councilors, county commissioners, city and county treasurers, and county clerk, as well as others. Because New Mexico's constitution ties probate courts to the county clerks' offices, we share office space with the county clerk. You can record a deed, get a marriage license, search for a plat or map of real property, research land records, register to vote, or file a probate case, all on the sixth floor.

The Probate Court's phone numbers are 768-4247 and 768-4028.

© 2005, Albuquerque Journal, All Rights Reserved 

appeared July 14, 2005, Albuquerque Journal, Business Outlook 
Reprinted with permission

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