2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 2 - Intestate Succession and Wills
Section 45-2-904 - Exclusions.

A. Section 45-2-901 NMSA 1978 does not apply to:

(1) a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:

(a) a premarital or postmarital agreement;

(b) a separation or divorce settlement;

(c) a spouse's election;

(d) a similar arrangement arising out of a prospective, existing or previous marital relationship between the parties;

(e) a contract to make or not to revoke a will or trust;

(f) a contract to exercise or not to exercise a power of appointment;

(g) a transfer in satisfaction of a duty of support; or

(h) a reciprocal transfer;

(2) a fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease or mortgage property and the power of a fiduciary to determine principal and income;

(3) a power to appoint a fiduciary;

(4) a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;

(5) a nonvested property interest held by a charity, government or governmental agency or subdivision if the nonvested property interest is preceded by an interest held by another charity, government or governmental agency or subdivision;

(6) a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral or other current or deferred benefit plan for one or more employees, independent contractors or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse;

(7) a property interest, power of appointment or arrangement that was not subject to the common-law rule against perpetuities or that is excluded by another statute of New Mexico; or

(8) a property interest held in trust.

B. For real property held in trust, at the end of three hundred sixty-five years from the later of the date on which an interest in real property is added to or purchased by a trust or the date that the trust became irrevocable, if the interest in real property is still held in trust and if the trust instrument:

(1) provides for the distribution of the interest upon termination of the trust, the property shall be distributed as though termination occurred at that time;

(2) does not provide for the distribution of the interest upon termination of the trust, the property shall be distributed to the beneficiaries who are then entitled to receive income from the trust:

(a) in proportion to the amount of income each is entitled to receive; or

(b) if that proportion is not specified in the trust instrument, in equal shares; or

(3) does not provide for the distribution of the interest upon termination of the trust and there is no income beneficiary of the trust, the property shall be distributed, pursuant to the laws of New Mexico then in effect that govern the distribution of intestate real property, to the then-living persons who are then determined to be the settlor's or testator's distributees as though the settlor or testator had died at that time, intestate, a resident of New Mexico and owning the property so distributable. For the purposes of this paragraph, "settlor" means a person who creates or contributes property to a trust.

C. A trust shall not become void or subject to termination under this section or Section 45-2-901 NMSA 1978 if:

(1) a trust holds an interest in a corporation, a limited liability company, a partnership, a statutory trust, a business trust or another business entity;

(2) the entity is the owner of an interest in real property;

(3) the entity terminates; and

(4) the trust becomes the holder of an interest in real property.

D. Except as otherwise provided in the trust instrument, the trustee of a trust that becomes the holder of an interest in real property through the sequence outlined in Subsection C of this section may:

(1) distribute the interest in real property in accordance with this subsection; or

(2) convey the interest in real property to another business entity in exchange for an interest in that entity to be held by the trustee.

E. For the purposes of this section, "real property" does not include:

(1) intangible personal property; or

(2) an interest in a corporation, a limited liability company, a partnership, a statutory trust, a business trust or another business entity, regardless of whether the entity is the owner of an interest in real property.

History: 1978 Comp., § 45-2-1004, enacted by Laws 1992, ch. 66, § 4; recompiled as 1978 Comp., § 45-2-904 by Laws 1993, ch. 174, § 66; 1995, ch. 210, § 27; 2016, ch. 69, § 713; 2016, ch. 72, § 2-101.

Official comments. — See Commissioners on Uniform State Law official comment to 2-904 UPC.

2016 Multiple Amendments. — Laws 2016, ch. 69, § 713 and Laws 2016, ch. 72, § 2-101 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2016, ch. 72, § 2-101, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2016, ch. 69, § 713 and Laws 2016, ch. 72, § 2-101 are described below. To view the session laws in their entirety, see the 2016 session laws on NMOneSource.com.

The nature of the difference between the amendments is that Laws 2016, ch. 69, § 713 removed a certain exclusion related to property interests from the provisions of Section 45-2-901 NMSA 1978, and Laws 2016, ch. 72, § 2-101 revised the statutory rule against perpetuities as it affects property interests, including real property interests, held in trust.

Laws 2016, ch. 72, § 2-101, effective July 1, 2016, revised the statutory rule against perpetuities as it affects property interests, including real property interests, held in trust; added the new subsection designation "A", redesignated former Subsections A through H as Paragraphs (1) through (8) of Subsection A, respectively, and redesignated former Paragraphs (1) through (8) of Subsection A as Subparagraphs (a) through (h) of Paragraph A(1), respectively; in Paragraph (8) of Subsection A, after "property interest", deleted "or arrangement subject to a time limit under the provisions of Section 45-2-907 NMSA 1978" and added "held in trust"; and added new Subsections B through E.

Laws 2016, ch. 69, § 713, effective July 1, 2016, removed a certain exclusion related to property interests from the provisions of Section 45-2-901 NMSA 1978; in Subsection G, after "New Mexico", deleted "or"; and deleted Subsection H, which stated "a property interest or arrangement subject to a time limit under the provisions of Section 45-2-907 NMSA 1978".

The 1995 amendment, effective July 1, 1995, substituted "Section 45-2-901 NMSA 1978" for "Section 45-2-1001 NMSA 1978" in the introductory paragraph and added Subsection H.