In addition to the family allowance, the decedent's surviving spouse is entitled from the estate to a value, not exceeding fifteen thousand dollars ($15,000) in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, the decedent's children who are devisees under the will, who are entitled to a share of the estate pursuant to Section 45-2-302 NMSA 1978 or, if there is no will, who are intestate heirs are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests plus that of other exempt property is less than fifteen thousand dollars ($15,000) or if there is not fifteen thousand dollars ($15,000) worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the fifteen thousand dollar ($15,000) value. Rights to specific property for the personal property allowance and assets needed to make up a deficiency in the property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument.

History: 1978 Comp., § 45-2-403, enacted by Laws 1993, ch. 174, § 21; 1995, ch. 210, § 8; 1997, ch. 95, § 1; 1999, ch. 79, § 1; 2011, ch. 124, § 21.

Official comments. — See Commissioners on Uniform State Laws official comment to 2-403 UPC.

Cross references. — 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 2011 amendment, effective January 1, 2012, provided that rights to specific property for the personal property allowance needed to make up a deficiency in the property have priority over all claims against the estate.

The 1999 amendment, effective June 18, 1999, in the second sentence, inserted the language beginning "who are" and ending "intestate heirs".

The 1997 amendment, effective April 8, 1997, substituted "fifteen thousand dollars ($15,000)" for "ten thousand dollars ($10,000)" throughout the section and deleted "who is a devisee under the will" following "spouse" in the first sentence.

The 1995 amendment, effective July 1, 1995, inserted "who is a devisee under the will" in the first sentence; inserted "who are devisees under the will or, if there is no will, who are intestate heirs" in the second sentence; 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.

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.

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.

Policy against waiver. — The policy behind the statutory allowance personal property 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 personal property 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 45-2-402 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.

Law reviews. — 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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 94 C.J.S. Wills § 167; 97 C.J.S. Wills §§ 1287, 1288.