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New Mexico law provides a set amount of money from a decedent’s estate for surviving spouses and dependent, minor children. This is called a “family allowance,” and it is given regardless of what other guidance is contained in the decedent’s will. Importantly, this amount is also shielded from creditors, and it will be automatically be deducted from the value of the decedent’s estate.

Family allowances can complicate inheritances in some ways, but they can also simplify the process of seeking a portion of the decedent’s estate as their surviving spouse or children. Most notably, these allowances take priority over other claims on the estate, which can shield this limited amount from contesting family claims or creditor claims.

For more information about family allowances, how they can affect a will, and other details, you can reach out to a family allowance probate attorney. New Mexico Financial & Family Law is located in Albuquerque, and we are ready to assist and advise you in all matters of estate planning, probate law, and other legal aspects of inheritance. Schedule a no-obligation consultation now when you call us at (505) 503-1637 or contact us online.

Family Allowance Probate Laws

The family allowance provides up to $30,000 of the decedent’s estate (NM Statutes §45-2-402) to the surviving spouse. If there is no surviving spouse, then the $30,000 will be divided evenly amongst any minor, dependent children. Adult children are not eligible to receive the family allowance.

There will also be a $15,000 personal property allowance, which applies to real estate property holdings as well as automobiles, jewelry, appliances, personal effects, and other holdings (NM Statutes §45-2-403). Like the family allowance, the personal property allowance applies to surviving spouses. Unlike the family allowance, if there is no surviving spouse, adult children of the decedent are eligible to split the $15,000.

Family Allowance Has Priority, And There Are Little Exceptions

What is remarkable about the family allowance is the fact that it is granted automatically to a spouse or surviving minor, dependent children. The intention of the law is to provide for surviving immediate family members in the event of a death, regardless of circumstances. There is no way to exclude this amount from the inheritance of a surviving spouse, even if a will explicitly tries to do so. This amount is also granted even if there are competing claims, including from creditors. 

The $15,000 personal property allowance offers similar protections for surviving spouses. However, it cannot apply to children who are specifically omitted from a will should no surviving spouse exist. Outside of these circumstances, the property allowance can apply to all surviving children, both named and unnamed in the will, so long as there is no specific language barring them from such. Should there be no surviving children, then the amount may go to the children of the decedent’s intestate heirs.

In the event that the estate does not have assets equalling to $45,000, then the surviving spouse or minor, dependent children can seek out other assets in order to pay the allowances. These may include property held in trust and assets transferred upon death (see NM Statutes §46A-5-505). Again, these allowances are provided before any creditor or other claimant can seek a portion of the estate.

Family Allowances Are Granted by New Mexico Probate, in Addition to Other Inheritances

A family allowance is applied outside of other inheritance processes. What this means is that the payment is automatic, and then any other inheritances may be granted. If there arises a situation where honoring all inheritances described in a will would leave insufficient value for the allowances, the allowances must be paid first, and then inheritances are honored in order of named (or intestate) priority.

Get Help Understanding the Law From a New Mexico Family Allowance Probate Attorney

New Mexico law on family allowances is fairly straightforward, but the existence of allowances can complicate other matters. You may be seeking your allowance as a surviving heir who was otherwise denied other inheritances. Or, you may be a personal representative of the decedent’s estate appointed by probate, and you need guidance on how to provide for the family allowances that apply.

In any situation, New Mexico Financial & Family Law is here for you. We are informed and experienced in all matters of probate law, and we also provide assistance with estate planning and trust formation. Give our knowledgeable family allowance probate lawyers a call at (505) 503-1637 or contact us online to schedule a no-risk consultation to learn more.

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