How Are Proceeds Divided Among Multiple Heirs When Some Predecease and Their Spouses or Children Succeed Them?
Detailed Answer
Under New Mexico’s intestate succession laws, a decedent’s property passes to heirs by representation (per stirpes). If an heir dies before the decedent, that heir’s descendants (not the heir’s spouse) inherit the deceased heir’s share in equal parts. New Mexico law does not allow a predeceased heir’s spouse to step into that share unless the decedent provided for it in a valid will.
The key statute is NMSA 1978, §45-2-103. You can review it here: NMSA 1978, §45-2-103.
Follow these steps to calculate the shares:
- Identify the first generation of heirs (e.g., the decedent’s children).
- Count living heirs in that generation. Each living heir receives one equal share.
- For any heir who predeceased the decedent but left children, allocate that heir’s share per stirpes. The children split their parent’s share equally.
Hypothetical Example: Decedent leaves an estate worth $300,000. The first generation heirs are three children: Alice, Ben, and Carla. Ben died before the decedent but left two children, David and Emma.
- Step 1: Three branches (Alice, Ben’s branch, Carla)
- Step 2: Estate ÷ 3 = $100,000 per branch
- Step 3: Alice receives $100,000; Carla receives $100,000. Ben’s branch gets $100,000, which David and Emma split equally.
- David’s share = $50,000; Emma’s share = $50,000.
If the decedent’s spouse survives and there are also surviving children, the spouse’s share depends on the facts and is governed by NMSA 1978, §45-2-102. In most cases, the spouse takes the first $100,000 plus one-half of the remainder; the children divide the other half per stirpes.
For more on spousal shares see: NMSA 1978, §45-2-102.
Helpful Hints
- Draw a family tree. Mark who predeceased and list their descendants.
- Confirm definitions: only blood descendants represent predeceased heirs in intestacy.
- Remember: an heir’s spouse does not inherit by representation under New Mexico law.
- Write a will to avoid default intestate rules and allow substitutions (including spouses).
- Keep beneficiary designations and estate plans up to date after births, deaths, or marriages.
- Consult a qualified attorney to review your estate plan and ensure it matches your wishes.