New Mexico Intestate Succession Chart: Shares, Heirs, and Rules

If a New Mexico resident dies without a will, the state’s intestate succession chart decides who inherits. The surviving spouse takes the decedent’s half of all community property. Separate property is split: the spouse takes it all if there are no descendants, or one-fourth if descendants survive, with the remaining three-fourths going to those descendants. When no spouse survives, the estate passes down a fixed ladder: descendants first, then parents, then siblings and their descendants, then grandparents and their descendants, and finally the state if no relatives can be found.¹²

The rest of this article walks through each row of that chart and the rules that change who ends up in it.

Why Community and Separate Property Are Charted Separately

New Mexico is a community property state, so before the chart applies, every asset gets sorted into one of two buckets.

Community property is what the spouses acquired together during the marriage: employment income, property bought with marital funds, retirement contributions made during the marriage. Each spouse already owns half. When one spouse dies, only the decedent’s half enters the estate.

Separate property is everything else: assets owned before the marriage, gifts made to one spouse alone, and inheritances directed to one spouse. It follows a different distribution rule under intestacy.

The practical effect: two spouses with identical net worth can produce very different inheritance outcomes depending on how much of what they owned falls into each bucket.

The Surviving Spouse’s Share

Community Property

The decedent’s half of the community property passes entirely to the surviving spouse, no matter who else survives.¹ Because the surviving spouse already owned the other half, the end result is that they hold all of the community property outright.

Separate Property

Separate property splits based on whether the decedent left descendants.¹

No surviving descendants: the spouse inherits all of the separate property.
Surviving descendants: the spouse takes one-fourth of the separate property; the descendants take the remaining three-fourths.

This split applies even when the surviving spouse is also the parent of the decedent’s children. Consider a decedent who inherited a house from their own parents and has two children. That house is separate property. The surviving spouse ends up with a one-fourth interest, and the two children divide the other three-fourths. Many families are surprised by this result because they assume the spouse takes everything by default.

When There Is No Surviving Spouse

If the decedent left no spouse, or for the portion of separate property that does not pass to the spouse, New Mexico works down a strict priority list. Each level inherits only if no one at a higher level survives.²

Descendants. Children and, through them, grandchildren and further descendants. If a spouse also survives, descendants split three-fourths of the separate property; if no spouse survives, they take the entire estate.
Parents. If no descendants survive, the estate goes to the decedent’s parents in equal shares. If only one parent survives, that parent takes it all.
Siblings and their descendants. If no parents survive, the estate passes to the parents’ descendants, meaning the decedent’s siblings, and through them, nieces and nephews.
Grandparents and their descendants. If no closer relatives survive, the estate moves out to grandparents or their descendants, including aunts, uncles, and cousins.

If no relatives can be found at any level, the estate escheats to the state of New Mexico.³

How Shares Divide Across Generations

When descendants inherit, New Mexico distributes shares “by representation.” The estate is divided into equal shares at the first generation with at least one living member. Each living person in that generation takes one share. The shares that would have gone to deceased members of that generation, if those members left descendants of their own, are pooled and divided the same way at the next generation down.⁴

A worked example. A parent dies leaving three children: Alice, Bob, and Carol. Alice is living. Bob predeceased the parent and left two children. Carol predeceased the parent and left one child. The estate first splits into three shares at the children’s level. Alice takes one-third. The two-thirds belonging to Bob and Carol pool together and divide equally among their three children, so each of those three grandchildren receives two-ninths.

This differs from the older “per stirpes” method, where Bob’s two children would each have taken one-sixth (splitting Bob’s one-third) and Carol’s one child would have taken the full one-third. Representation equalizes shares among grandchildren standing in the same generation.

Rules That Change Who Counts as an Heir

Adopted Children and Stepchildren

A legally adopted child is treated exactly like a biological child and inherits from adoptive parents and their relatives on the same footing.⁵ A stepchild who was never legally adopted does not inherit under intestate succession.

Half-Blood Relatives

A relative who shares only one parent with the decedent inherits the same share as a full-blooded relative. A half-sibling and a full sibling take equally.⁶

Posthumous Children

A child conceived before but born after the decedent’s death inherits as though alive at the moment of death.

The 120-Hour Survivorship Rule

An heir must survive the decedent by at least 120 hours, or five days, to inherit. Absent clear and convincing evidence of survival that long, the law treats the heir as having died first.⁷ The rule keeps property from passing briefly through one estate into another when two family members die close in time.

The Slayer Rule

A person who feloniously and intentionally kills the decedent cannot inherit from the estate and is treated as having predeceased the victim. The property moves to the next eligible heir on the priority list.⁸

Parents Barred From Inheriting

A parent whose parental rights were terminated cannot inherit from or through the child. The same bar applies if the child died before age 18 and clear and convincing evidence shows the parent’s rights could have been terminated for abandonment, abuse, neglect, or similar conduct. The parent is treated as having died first.⁹

Lifetime Gifts as Advancements

A significant lifetime gift counts against an heir’s intestate share only if a document signed by the decedent or the heir states it was intended as an advancement.¹⁰ Without that writing, the gift stays a gift and does not reduce what the heir inherits.

Assets the Chart Does Not Control

Intestate succession only governs assets that pass through the estate. Several common categories skip probate entirely and go directly to whoever the paperwork names, regardless of the chart above:

Property held in joint tenancy with right of survivorship passes to the surviving co-owner.
Community property with right of survivorship passes to the surviving spouse.
Retirement accounts such as IRAs, 401(k)s, and pensions pay out to the named beneficiary.
Life insurance proceeds pay to the named beneficiary; if none survives or is designated, the proceeds may return to the estate.
Payable-on-death and transfer-on-death bank and investment accounts pass to the named person.
Assets held in a trust are distributed according to the trust document.

Beneficiary designations override the intestate chart. A life insurance policy naming an ex-spouse from twenty years ago will typically still pay that ex-spouse, even if the decedent later remarried. For many families, these nonprobate assets make up the bulk of what actually transfers at death, which means the shares set out by New Mexico’s intestacy statute may apply to a smaller slice of the estate than heirs expect.