A. Except as provided in Subsection C of this section, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

(1) property not disposed of by the will;

(2) residuary devises;

(3) general devises; and

(4) specific devises.

B. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged and, upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

C. If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in Subsection A of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

D. If an estate of a decedent consists partly of separate property and partly of community property, the debts and expenses of administration shall be apportioned and charged against the different kinds of property in accordance with the provisions of Subsection B of Section 45-2-807 NMSA 1978.

E. If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in or contribution from other interests in the remaining assets.

History: 1953 Comp., § 32A-3-902, enacted by Laws 1975, ch. 257, § 3-902; 1995, ch. 210, § 43; 2016, ch. 69, § 717.

Official comments. — See Commissioners on Uniform State Law official comment to 3-902 UPC.

Cross references. — For sale of specifically devised or bequeathed property to pay proportionate amount of estate taxes, see 7-7-11 NMSA 1978.

For community and separate property, see the Community Property Act of 1973, 40-3-6 through 40-3-17 NMSA 1978.

The 2016 amendment, effective July 1, 2016, in Subsection D, after "Section", deleted "45-2-805" and added "45-2-807".

The 1995 amendment, effective July 1, 1995, substituted "Section 45-2-805 NMSA 1978" for "Section 2-804" at the end in Subsection D.

Abatement to satisfy decedent's promissory note. — Where decedent made a promissory note payable to decedent; decedent's surviving spouse did not sign the note; and decedent's will bequeathed the note and the remainder of decedent's separate property to decedent's child and devised decedent's interest in real and community property to decedent's spouse, because decedent's spouse did not sign the note, the note was payable from the separate and community personal property of decedent's estate, first from the real and personal property in the residuary devise to decedent's child and then proportionately from the specific legacies and no part of the community real property could be assessed to pay any balance due. In re Estate of Shadden, 1979-NMCA-078, 93 N.M. 274, 599 P.2d 1071, overruled by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116 N.M. 254, 816 P.2d 935.

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

For article, "Survey of New Mexico Law, 1979-80: Estates and Trusts," see 11 N.M.L. Rev. 151 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Preference among general legacies as regards abatement, 34 A.L.R. 1247.

Specific devises and specific legacies as subject to ratable contribution for payment of debts, 42 A.L.R. 1519.

Construction and effect of provisions of will regarding abatement of legacies or devises in event of insufficiency of assets to pay all in full, 101 A.L.R. 704.

Right of executor, administrator or testamentary trustee to allowance of attorney's fees and expenses incident to controversy over surcharging his account, 101 A.L.R. 806.

Doctrine of election as applicable as against beneficiary of will where provision for other beneficiary is invalid, not for reasons personal to former but because of statute or public policy, 112 A.L.R. 377.

Depreciation of assets of decedent's estate between final settlement, but after partial distribution or setting up of trust, 114 A.L.R. 458.

Preference as regards life interest created by will as carrying similar preference in respect of remainder interest, 117 A.L.R. 1339.

Fund remaining at termination of trust or annuity as applicable to make up deficiencies in particular bequest in preference to claims of residuary beneficiaries, 118 A.L.R. 352.

Charging specific legacy of stock of close corporation to pay general legacy for which assets of estate are otherwise insufficient, 144 A.L.R. 546.

Surviving spouse who accepts provision of will in lieu of dower or other marital rights, priority over other legatees, devisees and creditors, 2 A.L.R.2d 607.

Who must bear loss occasioned by election against will, 36 A.L.R.2d 291.

Right of devisee of real property specifically devised but subject to mortgage to relief from specific devisee of other property, 72 A.L.R.2d 383.

Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Bequest of stated amount to several legatees as entitling each to full amount or proportionate share thereof, 1 A.L.R.3d 479.

Allocation, as between income and principal, of income on property used in paying legacies, debts and expenses, 2 A.L.R.3d 1061.

Right of heir or devisee to have realty exonerated from lien thereon at expense of personal estate, 4 A.L.R.3d 1023.

Ademption of legacy of business or interest therein, 65 A.L.R.3d 541.

34 C.J.S. Executors and Administrators § 482; 96 C.J.S. Wills § 1153.