2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 3 - Property Rights
Section 40-3-3 - [Separation of property; admission to dwelling of spouse.]

Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other's dwelling.

History: Laws 1907, ch. 37, § 3; Code 1915, § 2749; C.S. 1929, § 68-106; 1941 Comp., § 65-303; 1953 Comp., § 57-3-3.

Entry into separate residence of spouse. — Section 40-3-3 NMSA 1978 does not provide immunity from prosecution for burglary of a spouse's separate residence. State v. Parvilus, 2014-NMSC-028, rev'g 2013-NMCA-025, 297 P.3d 1228.

Where, because of domestic problems, defendant rented a separate apartment for defendant's spouse; the parties agreed that the apartment was the spouse's separate residence, that defendant would not have a key to the apartment, and that defendant did not have the spouse's permission to enter the apartment; and several months later, defendant entered the spouse's apartment through a window, 40-3-3 NMSA 1978 did not preclude defendant's conviction for burglary of the spouse's separate dwelling. State v. Parvilus, 2014-NMSC-028, rev'g 2013-NMCA-025, 297 P.3d 1228.

The plain language of 40-3-3 NMSA 1978 renders inter-spousal burglary an impossibility because the New Mexico burglary statutes protect the possessory right to exclude and 40-3-3 NMSA 1978 dictates that spouses have no such right to exclude the other spouse. State v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.

Entry into residence of estranged spouse. — Where defendant entered defendant's estranged spouse's apartment without permission, kidnapped the victim, and killed the victim, 40-3-3 NMSA 1978 prohibited defendant's spouse form excluding defendant from the spouse's apartment and defendant's entry into the apartment, even with felonious purpose, did not constitute burglary as a matter of law. State v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.

Law reviews. — For comment, "Community Property - Power of Testamentary Disposition - Inequality Between Spouses," see 7 Nat. Resources J. 645 (1967).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Joining in instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 A.L.R.2d 294.

Division of community property between spouses into separate property as constituting gift within gift statutes, 19 A.L.R.2d 860.

Divorce and separation: Attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.

41 C.J.S. Husband and Wife § 128 et seq.