A decedent's surviving spouse is entitled to a family allowance of thirty thousand dollars ($30,000). If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a family allowance amounting to thirty thousand dollars ($30,000) divided by the number of minor and dependent children of the decedent. The family allowance is exempt from and has priority over all claims against the estate. Family allowance is in addition to any share passing to the surviving spouse or minor or dependent children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument.

History: 1953 Comp., § 32A-2-402, enacted by Laws 1975, ch. 257, § 2-402; repealed and reenacted by Laws 1993, ch. 174, § 20; 1995, ch. 210, § 7.

Official comments. — See Commissioners on Uniform State Laws official comment to 2-402 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 20 repealed former 45-2-402 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-402, relating to personal property allowances, and enacted a new section, effective July 1, 1993.

Compiler's notes. — This section includes within its scope some of the functions of former 31-4-1, 1953 Comp.

Cross references. — For allowance of claims by court, after petition or proceedings, see 45-3-806 and 45-3-807 NMSA 1978.

For rules governing garnishment and writs of execution in the district, magistrate and metropolitan courts, see 1-065.1, 2-801 and 3-801 NMRA, respectively.

For form for claim of exemptions on executions, see 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see 4-804 NMRA.

For form for application for writ of garnishment and affidavit, see 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see 4-808A NMRA.

For form for claim of exemption from garnishment, see 4-809 NMRA.

The 1995 amendment, effective July 1, 1995, substituted "thirty thousand dollars ($30,000)" for "fifteen thousand dollars ($15,000)" in the first and second sentences and, in the last sentence, inserted "by intestate succession or" and substituted "by the descendant in the will or other governing instrument" for "or by intestate succession" at the end.

Death of surviving spouse prior to distribution of statutory allowances. — The legislature did not intend that statutory allowances, which are not claimed prior to the death of the surviving spouse, be transferred from the decedent's estate to the estate and heirs of the surviving spouse. Duran v. Vigil, 2012-NMCA-121, 296 P.3d 1209, cert. denied, 2012-NMCERT-011.

Transfers outside of a will cannot offset or preclude the statutory allowances. Bell v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Policy against waiver. — The policy behind the statutory allowance of family allowance argues against finding a waiver in the absence of clear explicit language. Salopek v. Hoffman, 2005-NMCA-016, 137 N.M. 47, 107 P.3d 1, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73.

Where terms of post-nuptial agreement are too general and too ambiguous, the agreement will not support a finding of waiver of the family allowance. Salopek v. Hoffman, 2005-NMCA-016, 137 N.M. 47, 107 P.3d 1, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73.

Entitlement to allowances. — The surviving spouse is entitled to the allowances provided under this section and 45-2-403 NMSA 1978 notwithstanding contrary intentions expressed in the deceased spouse's will. Brito v. Jewell, 2001-NMCA-008, 130 N.M 93, 18 P.3d 334.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 97 C.J.S. Wills §§ 1262, 1280, 1287.