A. If a testator's surviving spouse married the testator after the testator executed his will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes pursuant to Section 45-2-603 or 45-2-604 NMSA 1978 to such a child or to a descendant of such a child, unless:

(1) it appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse;

(2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or

(3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

B. In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift pursuant to Section 45-2-603 or 45-2-604 NMSA 1978 to a descendant of such a child, abate as provided in Section 45-3-902 NMSA 1978.

History: 1953 Comp., § 32A-2-301, enacted by Laws 1975, ch. 257, § 2-301; 1977, ch. 121, § 5; repealed and reenacted by Laws 1993, ch. 174, § 17; 1995, ch. 210, § 5.

Repeals and reenactments. — Laws 1993, ch. 174, § 17 repealed former 45-2-301 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-301, relating to omitted spouses, and enacted a new section, effective July 1, 1993.

The 1995 amendment, effective July 1, 1995, inserted "to a descendant of such a child" and "such a child or to" near the end of the introductory paragraph in Subsection A.

Beneficiaries under a trust are not devisees. — Where the decedent devised his estate to the trustees of a revocable trust to be distributed to the decedent's children, the children were not devisees within the meaning of this section. Bell v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 145 N.M. 532.

Trust assets. — The assets of an inter vivos revocable trust funded by the decedent before his or her death are not part of the probate estate and cannot be used to calculate or satisfy the intestate share of an omitted spouse. Bell v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 145 N.M. 532.

The intestate share of an omitted spouse is not a statutory allowance as contemplated by 46A-5-505(A)(3) NMSA 1978. Bell v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 145 N.M. 532.

Share of omitted spouse. — Where decedent's will omitted his spouse and his only child, who was an adopted son, and disposed of the entire estate to a third person, the surviving spouse was entitled to a one-fourth interest. In re Estate of Coleman, 1986-NMCA-030, 104 N.M. 192, 718 P.2d 702.

Effect of remarriage. — Under former 30-1-7.1 A, 1953 Comp., a will executed in 1965 while testator was married was revoked as to his wife in 1969 when he remarried her after an intervening divorce. Testator died intestate as to his wife, a surviving spouse, who inherited the entire estate. In re Estate of Montoya, 1976-NMSC-051, 89 N.M. 667, 556 P.2d 353 (decided under former law).

Evidence sufficient to support decedent's intent to provide for wife outside will. — Evidence of transfers of funds to joint checking and savings accounts and transfer of a retirement account to a wife was sufficient to support the jury's determination of the decedent's intent to provide for his wife in the form of transfers outside of the will in lieu of a testamentary provision. In re Estate of Taggart, 1980-NMCA-129, 95 N.M. 117, 619 P.2d 562.

Section applies where postmarriage will procured by spouse's undue influence. — The proper area of inquiry is whether the decedent was competent to enter into a valid marriage. If so, even if the wife exercised undue influence so as to invalidate a later testamentary disposition, the statutory provision granting an intestate share to an omitted spouse still controls. In re Estate of Elbelt, 99 N.M. 229, 656 P.2d 892.

Marriage revokes antenuptial will. — The marriage of a testator, whether or not it is followed by the birth of a child, revokes an antenuptial will. In re Estate of Teopfer, 1904-NMSC-026, 12 N.M. 372, 78 P. 53 (decided under former law).

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

For comment, "In-Migration of Couples from Common Law Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M.L. Rev. 113 (1978-79).

For annual survey of New Mexico law relating to estates and trusts, see 12 N.M.L. Rev. 363 (1982).

For article, "Survey of New Mexico Law, 1982-83: Estates and Trusts," see 14 N.M.L. Rev. 153 (1984).

For annual survey of New Mexico law of estates and trusts, see 19 N.M.L. Rev. 669 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 68, 69, 316, 578, 643, 652, 653.

What constitutes transfer outside the will precluding surviving spouse from electing statutory share under Uniform Probate Code, § 2-301, 11 A.L.R.4th 1213.

Construction, application, and effect of statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will, 48 A.L.R.4th 972.

94 C.J.S. Wills §§ 95, 97; 95 C.J.S. Wills §§ 595, 597.