In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a determination of death and status apply:

A. in accordance with Subsection A of Section 12-2-4 NMSA 1978, death occurs when an individual has sustained either:

(1) irreversible cessation of circulatory and respiratory functions; or

(2) irreversible cessation of all functions of the entire brain, including the brain stem.

A determination of death must be made in accordance with accepted medical standards;

B. an authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date and time of death and the identity of the decedent;

C. an authenticated copy of a record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead or alive is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;

D. in the absence of prima facie evidence of death pursuant to Subsections B or C of this section, the fact of death may be established by clear and convincing evidence, including circumstantial evidence;

E. an individual whose death is not established pursuant to Subsection A, B, C or D of this section who is absent for a continuous period of five years, during which the person has not been heard from and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. The person's death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier; and

F. in the absence of evidence disputing the time of death stated on a document described in Subsection B or C of this section, a document described in Subsection B or C of this section that states a time of death one hundred twenty hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by one hundred twenty hours.

History: 1953 Comp., § 32A-1-107, enacted by Laws 1975, ch. 257, § 1-107; repealed and reenacted by Laws 1993, ch. 174, § 3; 2011, ch. 124, § 3.

Repeals and reenactments. — Laws 1993, ch. 174, § 3 repealed former 45-1-107 NMSA 1978, as enacted by Laws 1975, ch. 257, § 1-107, and enacted a new section, effective July 1, 1993.

Cross references. — For the Rules of Evidence, see 11-101 NMRA.

The 2011 amendment, effective January 1, 2012, eliminated the need for certified copies of documents to make a determination of death.

Bankruptcy filing on behalf of missing person. — Despite the presumption under New Mexico law that missing persons are alive for five years after their disappearance (45-1-107 NMSA 1978), a conservator for a missing person may not file bankruptcy on behalf of the missing person, since to do so would invite potential abuse of the bankruptcy system and frustrate the primary bankruptcy policy of providing debtors with a fresh start. In re King, 234 B.R. 515 (Bankr. D.N.M. 1999).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Death §§ 462, 546, 551, 553; 29A Am. Jur. 2d Evidence § 1456 et seq.; 39 Am. Jur. 2d Health § 51; 79 Am. Jur. 2d Wills § 128.

Death certificate as evidence, 17 A.L.R. 359, 42 A.L.R. 1454, 96 A.L.R. 324.

25A C.J.S. Death § 6; 46A C.J.S. Insurance §§ 1320, 1321.