2020 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 2 - Intestate Succession and Wills
Part 1 - INTESTATE SUCCESSION
Subpart 1 - General Provisions
Section 45-2-114 - Parent barred from inheriting in certain circumstances.

A. A parent is barred from inheriting from or through a child of the parent if:

(1) the parent's parental rights were terminated and the parent-child relationship was not judicially reestablished; or

(2) the child died before reaching eighteen years of age and there is clear and convincing evidence that immediately before the child's death the parental rights of the parent could have been terminated under law of New Mexico other than the Uniform Probate Code on the basis of nonsupport, abandonment, abuse, neglect or other actions or inactions of the parent toward the child.

B. For the purpose of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.

History: 1978 Comp., § 45-2-114, enacted by Laws 1993, ch. 174, § 16; 2004, ch. 72, § 1; 2011, ch. 124, § 12.

Official comments. — See Commissioners on Uniform State Laws official comment to 2-114 UPC.

Cross references. — For definition of "child", see 45-1-201A NMSA 1978.

The 2011 amendment, effective January 1, 2012, eliminated the former rules that determined the parents of natural and adopted children for purposes of intestate succession and provided rules to determine when a parent is barred from inheriting from or through a child.

The 2004 amendment, effective May 19, 2004, amended Paragraph (2) of Subsection B to change "the other natural parent" to "that nonsevered natural parent".

Relation to wrongful death actions. — The substantive standards of the Uniform Probate Code do not apply to wrongful death actions, so 45-2-114(C) NMSA 1978 has no effect on entitlement to wrongful death benefits by a father whose paternity had been adjudicated. In re Estate of Sumler, 2003-NMCA-030, 133 N.M. 319, 62 P.3d 776.

Child born in wedlock presumed legitimate. Grates v. Garcia, 1915-NMSC-019, 20 N.M. 158, 148 P. 493, overruled on other grounds by Melvin v. Kazhe, 1971-NMSC-128, 83 N.M. 356, 492 P.2d 138.

Sufficiency of recognition. — Where, in an action of ejectment, plaintiff claims that he is the illegitimate son of a deceased owner of such realty, that such owner recognized him as his son in writing prior to his death, and the evidence is conflicting as to whether such former owner could have begotten the claimant, a verdict against such claimant will not be disturbed upon appeal. Grates v. Garcia, 1915-NMSC-019, 20 N.M. 158, 148 P. 493, overruled on other grounds by Melvin v. Kazhe, 1971-NMSC-128, 83 N.M. 356, 492 P.2d 138.

Authorization to insert name in birth certificate. — Where the putative father authorized the insertion of his name in the birth certificate as the father of the illegitimate child, there was sufficient evidence of general and notorious recognition. Sanchez v. Torres, 1931-NMSC-015, 35 N.M. 383, 298 P. 408, on rehearing 1934-NMSC-026, 38 N.M. 556, 37 P.2d 805.

Where evidence of impotency insufficient. — In suit to establish paternity and rights of inheritance of illegitimate sons, evidence of deceased's impotency precluding paternity was insufficient where there was evidence of conduct and consent to have his name on birth certificate of the sons as their father. Sanchez v. Torres, 1934-NMSC-026, 38 N.M. 556, 37 P.2d 805.

Adopted child is not an heir of his natural parents. In re Estate of Shehady, 1971-NMSC-118, 83 N.M. 311, 491 P.2d 528.

Paternity established after adoption. — An adoptive child is precluded from inheriting from the estate of his natural father even if the paternity of the father is established after adoption, and even if the child is adopted by his maternal grandparents. Aldridge v. Mims, 1994-NMCA-114, 118 N.M. 661, 884 P.2d 817.

Adoption severs legal rights and privileges between the adopted child and the natural parents. In re Estate of Holt, 1981-NMSC-011, 95 N.M. 412, 622 P.2d 1032.

Adopted child belongs to adoptive parents as if he or she had been their natural child, with the same rights of a natural child, all to the exclusion of the natural parents. In re Estate of Holt, 1981-NMSC-011, 95 N.M. 412, 622 P.2d 1032.

Child adopted by stepfather may not inherit from paternal grandmother. — Where child was adopted by mother's husband (child's stepfather) after child's natural father's death but before paternal grandmother's death, adopted child could not inherit from her grandmother (her natural father's mother). In re Estate of Holt, 1981-NMSC-011, 95 N.M. 412, 622 P.2d 1032.

Recognized pretermitted illegitimate child to receive intestate share. — An illegitimate child who has been recognized as required by former 29-1-18, 1953 Comp., and is omitted from the father's will, is entitled to receive an intestate share pursuant to 30-1-7, 1953 Comp. (similar to 45-2-302 NMSA 1978). In re Gossett's Estate, 1942-NMSC-037, 46 N.M. 344, 129 P.2d 56.

Support and custody by father. — Section 29-1-18, 1953 Comp. (repealed), did not cast upon the putative father of an illegitimate child the duty to support, educate and care for such child during its minority, or change the rights of custody as between the father and those claiming custody of the child under an attempted adoption. Ex Parte Wallace, 1920-NMSC-019, 26 N.M. 181, 190 P. 1020.

Inheritance of estate of illegitimate child by deceased mother's kindred. — The estate of a dead mother's illegitimate child is inherited by his mother's kindred according to the laws of descent and distribution, as though the child were legitimate. State v. Chavez, 1938-NMSC-056, 42 N.M. 569, 82 P.2d 900.

Public policy to treat adopted same as natural children. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711.

Colorado adoption given credence although contrary to New Mexico law. — An adoption in Colorado, of an unmarried adult by another adult who was only 13 years older than person adopted, should be accepted in New Mexico although contrary to 22-2-13, 1953 Comp. (repealed), requiring adoptor to be 20 or more years older, and the adopted person should be considered the lawful child of the adopting parent under will bequeathing trust funds to trustee for the benefit of adopting parent or his surviving lawful child. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711.

Evidence sufficient to establish paternity. Sanchez v. Quintana, 97 N.M. 508, 641 P.2d 539 (Ct. App. 1982).

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

For annual survey of New Mexico law relating to estates and trusts, see 12 N.M.L. Rev. 363 (1982).

For note, "Adoption - Intestate Succession - The Denial of a Stepparent Adoptee's Right to Inherit from an Intestate Natural Grandparent: In re Estate of Holt," see 13 N.M.L. Rev. 221 (1983).

For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 10 Am. Jur. 2d Bastards §§ 45 to 59, 150 to 153, 159.

23 Am. Jur. 2d Descent and Distribution §§ 62, 63, 121.

Illegitimate child as a "child" within statute limiting the right or amount of disposition by will by one survived by a child, 23 A.L.R. 400.

Inheritance by, from or through illegitimate, 24 A.L.R. 570, 83 A.L.R. 1330, 48 A.L.R.2d 759, 60 A.L.R.2d 1182.

Denial of, or expression of doubt as to, paternity or other relationship as estoppel to assert right of inheritance by virtue of such relationship, 33 A.L.R. 579.

Right of child legitimated by marriage of parents to take by inheritance from kindred of parents, 64 A.L.R. 1124.

What constitutes a "marriage" within meaning of a statute legitimating issue of all marriages null in law, 84 A.L.R. 499.

Statute regarding status or rights of children born out of wedlock as applicable to children born before it became effective, 140 A.L.R. 1323.

What amounts to recognition within statutes affecting the status or rights of illegitimates, 33 A.L.R.2d 705.

Inheritance from illegitimate, 48 A.L.R.2d 759.

Conflict of laws as to legitimacy or legitimation or as to rights of illegitimates, as affecting descent and distribution of decedent's estate, 87 A.L.R.2d 1274.

Inheritance by illegitimate from or through mother's ancestors or collateral kindred, 97 A.L.R.2d 1101.

Inheritance by illegitimate from mother's other illegitimate children, 7 A.L.R.3d 677.

Right of adopted child to inherit from intestate natural grandparent, 60 A.L.R.3d 631.

Legitimation by marriage to natural father of child born during mother's marriage to another, 80 A.L.R.3d 219.

Right of illegitimate grandchildren to take under testamentary gift to "grandchildren," 17 A.L.R.4th 1292.

Word "child" or "children" in will as including grandchild or grandchildren, 30 A.L.R.4th 319.

Admissibility, weight and sufficiency of Human Leukocyte Antigen (HLA) tissue typing tests in paternity cases, 37 A.L.R.4th 167.

Adoption as precluding testamentary gift under natural relative's will, 71 A.L.R.4th 374.

Adopted child as within class named in deed or inter vivos trust instrument, 37 A.L.R.5th 237.

26A C.J.S. Descent and Distribution §§ 3, 28, 81.