A. The rights of the surviving spouse to family allowance and personal property allowance, or either of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the surviving spouse.

B. A surviving spouse's waiver is not enforceable if the surviving spouse proves that:

(1) the surviving spouse did not execute the waiver voluntarily; or

(2) the waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse:

(a) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;

(b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and

(c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

C. An issue of unconscionability or voluntariness of a waiver is for decision by the court as a matter of law.

D. Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of family allowance and personal property allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to each from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

History: 1978 Comp., § 45-2-407, enacted by Laws 1995, ch. 210, § 10.

Effective dates. — Laws 1995, ch. 210, § 94 made the act effective July 1, 1995.

Policy against waiver. — The policy behind the statutory allowances of family allowance and 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.

No retroactive application. — This section, which became effective July 1, 1995, cannot be applied retroactively to a postnuptial agreement entered into by the parties in 1980. 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 postnuptial agreement are too general and too ambiguous, the agreement will not support a finding of waiver of the family and personal property allowances. 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.