Omitted or Pretermitted Children Under Wills in New Mexico
At a glance
| Will and child covered | Later-born/adopted child omitted from will; living child omitted solely through mistaken belief of death (§ 45-2-302(A), (C)). |
|---|---|
| Birth or adoption timing | Birth or adoption after execution; separate mistaken-death route for a child already living (§ 45-2-302(A), (C)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death route needs omission solely from belief child was dead (§ 45-2-302(A), (C)). |
| Intentional omission | Later-child share excluded if intentional omission appears from will; subsection B expressly applies to subsection A (§ 45-2-302(B)(1)). |
| Other-parent gifts | No-child-at-execution share excluded if substantially all estate devised to other parent, who survives and can take (§ 45-2-302(A)(1)). |
| Outside gifts and advancements | Outside transfer defeats later-child share if meant in lieu of will gift, shown by statements, amount, or other evidence (§ 45-2-302(B)(2)). |
| Baseline statutory share | No living child at execution: intestate-equivalent value, subject to other-parent exception (§ 45-2-302(A)(1)). |
| Effect of gifts to existing children | If then-living children received devises, later child shares equally in their devise pool; same interest character where feasible (§ 45-2-302(A)(2)(a)–(c)). |
| Property source and abatement | Existing-child devises abate ratably; intestate-value branch uses § 45-3-902 order beginning with undevised property (§§ 45-2-302(A)(2)(d), (D); 45-3-902(A)). |
| Trust and nonprobate reach | Outside transfer may defeat later-child coverage; equalized interest can be equitable/legal and present/future (§ 45-2-302(B)(2), (A)(2)(c)). |
Requirements one by one
Covered child
Section 45-2-302(A) covers a child born or adopted after will execution whom the will fails to provide for. Subsection (C) separately gives the same kind of share to a child living at execution if the testator omitted that child solely because the testator believed the child dead.
Amount and source
Under § 45-2-302(A)(1), an omitted later child receives the value of an intestate share if no child was living at execution, subject to the other-parent exception. Subsection (D) applies the § 45-3-902(A) abatement order to that share: undevised property, residuary devises, general devises, then specific devises.
If children were living and received devises, § 45-2-302(A)(2) instead limits the new child's pool to those devises and calculates an equal share as if all omitted later children had been included. The existing children's devises abate ratably, and the new interest keeps their equitable or legal and present or future character where feasible.
What trips people up
The other-parent exception needs all or substantially all of the estate devised to that parent, who must survive and be entitled to take. Under § 45-2-302(B), intentional omission must appear from the will; an outside transfer defeats the later-child share only when statements, amount, or other evidence show it was meant in lieu of a will provision. Subsection (B) expressly refers to subsection (A), while the mistaken-death route is stated separately in subsection (C).
Common questions
What if a general gift is charged on one asset? Under § 45-3-902(B), it counts as a specific devise up to that asset's value and a general devise for any shortfall.
Can the will specify a different abatement order? Section 45-3-902(C) gives effect to an expressed order; it also permits a different order needed to carry out the testator's plan or a devise's purpose.
Statutes and sources
- N.M. Stat. §§ 45-2-302 and 45-3-902. Verbatim current text, official PDF page URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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