Will Anti-Lapse and Substitute Gifts in New Mexico

At a glance

Requirements one by one

Covered will gifts and descendants

Under § 45-2-603(A)(5), a will devise includes a class gift, an alternative devise, and a testamentary power exercise. The deceased devisee must be a grandparent, descendant of a grandparent, or stepchild of the testator or of the donor of the power exercised in the will (§ 45-2-603(B)(1)). A devisee already dead when the will was executed can qualify (§ 45-2-603(A)(6)). For an individual devise, surviving descendants receive the beneficiary's share by representation.

§ 45-2-603(A)(2) includes someone who would have taken as a class member if alive. Under § 45-2-603(B)(2), a covered class member's descendants can take that member's share by representation. The subsection excepts classes described as “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “relatives,” “family,” or similar words.

Survival and failed gifts

§ 45-2-603(A)(8) defines surviving descendants by reference to § 45-2-702. Under § 45-2-702(A), someone whose survival of the testator by 120 hours is not proved by clear and convincing evidence is generally deemed to have predeceased. § 45-2-702(D)(2) supplies an exception for an express instrument provision about survival time; subsection (D) has other exceptions.

If § 45-2-603 does not save a failed nonresiduary devise, § 45-2-604(A) sends it to the residue. § 45-2-604(B) reallocates a failed share of a residue given to multiple persons among the other residuary devisees in proportion to their remaining interests. Property still not effectively disposed of by will passes by intestate succession under § 45-2-101(A).

Alternatives, appointments, and other instruments

Under § 45-2-603(B)(4), an alternative devise supersedes the substitute gift when a member of the alternative class or the expressly named alternative devisee is entitled to take. § 45-2-603(A)(1) says an ordinary residuary clause counts as that alternative only when the will specifically directs failed nonresiduary gifts into the residue. If competing alternatives both generate substitute gifts, § 45-2-603(C)(2) gives priority to the substitute for a younger-generation devise. Under § 45-2-603(B)(5), descendants of a deceased appointee may substitute even if they were not objects of the power, unless the power's creating language expressly excludes that substitution.

Separate § 45-2-706 provides a substitute-gift route for listed life-insurance, retirement-plan, POD-account and transfer-on-death designations. Under § 45-2-706(B)(1), a deceased individual beneficiary's surviving descendants take by representation, subject to that section's conditions. The definition in § 45-2-707(A)(7) identifies the trust future interests covered; under § 45-2-707(B)(1), the beneficiary must survive the distribution date, which can be later than the testator's death, and qualifying descendants can take by representation. Those separate sections must be applied to their own instruments and interests.

What trips people up

§ 45-2-601 allows a finding of contrary intention to displace its will-construction rules. Yet under § 45-2-603(B)(3), words such as “if he survives me” or “my surviving children” alone do not show contrary intent sufficient to displace the substitute gift. A qualifying alternative devise can displace it, but the will must meet § 45-2-603(B)(4)'s entitlement test.

Common questions

Does a beneficiary who died before the will was signed count? Yes. Section 45-2-603(A)(6) includes a devisee or class member deceased when the testator executed the will, subject to the other statutory conditions.

Does a simple residue clause automatically beat the substitute gift? No. Section 45-2-603(A)(1) requires the will specifically to say failed nonresiduary gifts pass under the residue for that clause to count as an alternative devise.

Statutes and sources

• N.M. Stat. Ann. §§ 45-2-101, 45-2-601, 45-2-603, 45-2-604, 45-2-702, 45-2-706 and 45-2-707. The source fields above contain verbatim official excerpts, PDF page links, and access dates.