A. As used in this section:

(1) "adoptee" has the meaning set forth in Section 45-2-115 NMSA 1978;

(2) "child of assisted reproduction" has the meaning set forth in Section 45-2-120 NMSA 1978;

(3) "distribution date" means the date when an immediate or postponed class gift takes effect in possession or enjoyment;

(4) "functioned as a parent of the adoptee" has the meaning set forth in Section 45-2-115 NMSA 1978, substituting "adoptee" for "child" in that definition;

(5) "functioned as a parent of the child" has the meaning set forth in Section 45-2-115 NMSA 1978;

(6) "genetic parent" has the meaning set forth in Section 45-2-115 NMSA 1978;

(7) "gestational child" has the meaning set forth in Section 45-2-121 NMSA 1978; and

(8) "relative" has the meaning set forth in Section 45-2-115 NMSA 1978.

B. A class gift that uses a term of relationship to identify the class members includes a child of assisted reproduction, a gestational child and, except as otherwise provided in Subsections E and F of this section, an adoptee and a child born to parents who are not married to each other and their respective descendants if appropriate to the class in accordance with the rules for intestate succession regarding parent-child relationships. For the purpose of determining whether a contrary intent exists pursuant to Section 45-2-701 NMSA 1978, a provision in a governing instrument that relates to the inclusion or exclusion in a class gift of a child born to parents who are not married to each other but that does not specifically refer to a child of assisted reproduction or a gestational child does not apply to a child of assisted reproduction or a gestational child.

C. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces or nephews, are construed to exclude relatives by marriage, unless:

(1) when the governing instrument was executed, the class was then and foreseeably would be empty; or

(2) the language or circumstances otherwise establish that relatives by marriage were intended to be included.

D. Terms of relationship in a governing instrument that do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces or nephews, are construed to include both types of relationships.

E. In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of the genetic parent unless the genetic parent, a relative of the genetic parent, or the spouse or surviving spouse of the genetic parent or of a relative of the genetic parent functioned as a parent of the child before the child reached eighteen years of age.

F. In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless:

(1) the adoption took place before the adoptee reached eighteen years of age;

(2) the adoptive parent was the adoptee's stepparent or foster parent; or

(3) the adoptive parent functioned as a parent of the adoptee before the adoptee reached eighteen years of age.

G. The following rules apply for purposes of the class-closing rules:

(1) a child in utero at a particular time is treated as living at that time if the child lives one hundred twenty hours after birth;

(2) if a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent's death, the child is treated as living on the distribution date if the child lives one hundred twenty hours after birth and was in utero not later than thirty-six months after the deceased parent's death or born not later than forty-five months after the deceased parent's death; and

(3) an individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted.

History: 1978 Comp., § 45-2-705, enacted by Laws 1993, ch. 174, § 53; 2011, ch. 124, § 26.

Official comments. — See Commissioners on Uniform State Law official comment to 2-705 UPC.

The 2011 amendment, effective January 1, 2012, rewrote this section to provide rules for determining class members, for construing dispositive provisions, and for closing the class.