A. If an individual dies intestate as to all or a portion of his estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if:

(1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement; or

(2) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

B. For purpose of Subsection A of this section, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.

C. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.

History: 1953 Comp., § 32A-2-109, enacted by Laws 1975, ch. 257, § 2-109; 1976 (S.S.), ch. 37, § 2; repealed and reenacted by Laws 1993, ch. 174, § 11.

Official comments. — See Commissioners on Uniform State Laws official comment to 2-109 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 11 repealed former 45-2-109 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-109, relating to the meaning of child and related terms, and enacted a new section, effective July 1, 1993.

Cross references. — For definition of "heirs", see 45-1-201A NMSA 1978.

For judicial determination, see 45-3-409 to 45-3-412 NMSA 1978.

"Advancement" construed. — An advancement is a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the donor's estate that the donee would be entitled to on the death of the donor intestate. In re Estate of Martinez, 1981-NMCA-081, 96 N.M. 619, 633 P.2d 727.

Gift to children presumed advancement. — There is a presumption that a parent's substantial gift to one of his children is intended as an advancement. In re Estate of Martinez, 1981-NMCA-081, 96 N.M. 619, 633 P.2d 727.

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 3 Am. Jur. 2d Advancements §§ 11 to 15.

Widow's statutory distributive share as affected by advancements to others, or by provisions of will that legatees shall take certain indebtedness owing to testator as part of their share, 76 A.L.R. 1420.

Check as evidencing advancement, 74 A.L.R.5th 491.

26A C.J.S. Descent and Distribution §§ 91 to 115.