2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 2 - Intestate Succession and Wills
Part 8 - GENERAL PROVISIONS
Section 45-2-804 - Revocation of probate and nonprobate transfers by divorce; no revocation by other changes of circumstances.

Universal Citation: NM Stat § 45-2-804 (2021)

A. As used in this section:

(1) "disposition or appointment of property" includes a transfer of an item of property or other benefit to a beneficiary designated in a revocable trust or other governing instrument;

(2) "divorce or annulment" means a divorce, annulment or dissolution or declaration of invalidity of a marriage that would exclude the spouse as a surviving spouse within the meaning of Section 45-2-802 NMSA 1978 or the commencement of a valid proceeding concluded either before or after an individual's death by an order purporting to terminate all marital property rights, including a property division judgment entered pursuant to the provisions of Section 40-4-20 NMSA 1978. A decree of separation that does not terminate the status of spouse is not a divorce for purposes of this section;

(3) "divorced individual" includes an individual whose marriage has been annulled;

(4) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment of the divorced individual's marriage to the former spouse;

(5) "relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity; and

(6) "revocable", with respect to a disposition, appointment, provision or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered by law or under the governing instrument to cancel the designation in favor of the former spouse or former spouse's relative whether or not the divorced individual was then empowered to designate the divorced individual's own self in place of the former spouse or in place of the former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power.

B. Except as provided by the express terms of a governing instrument, a court order or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, the divorce or annulment of a marriage:

(1) revokes any revocable:

(a) disposition or appointment of property made by a divorced individual to the former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;

(b) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse; and

(c) nomination in a governing instrument, nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent or guardian; and

(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses into equal tenancies in common.

C. A severance pursuant to the provisions of Paragraph (2) of Subsection B of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property that are relied upon in the ordinary course of transactions involving such property as evidence of ownership.

D. Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.

E. Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.

F. No change of circumstances other than as described in this section and in Section 45-2-803 NMSA 1978 effects a revocation.

G. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment or remarriage or for having taken any other action in good faith reliance on the validity of the governing instrument before the payor or other third party received written notice of the divorce, annulment or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation pursuant to the provisions of this section.

Written notice of the divorce, annulment or remarriage pursuant to the provisions of this section shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of the written notice of the divorce, annulment or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination pursuant to the provisions of this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

H. A person who purchases property from a former spouse, relative of a former spouse or any other person for value and without notice or who receives from a former spouse, relative of a former spouse or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation is neither obligated pursuant to the provisions of this section to return the payment, item of property or benefit nor is liable pursuant to the provisions of this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, relative of a former spouse or other person who, not for value, received a payment, item of property or any other benefit to which that person is not entitled pursuant to the provisions of this section is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who is entitled to it pursuant to the provisions of this section.

I. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property or any other benefit covered by this section, a former spouse, relative of the former spouse or any other person who, not for value, received a payment, item of property or any other benefit to which that person is not entitled pursuant to the provisions of this section is obligated to return that payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who would have been entitled to it were this section or part of this section not preempted.

History: 1978 Comp., § 45-2-804, enacted by Laws 1993, ch. 174, § 63; 1995, ch. 210, § 24; 2011, ch. 124, § 31; 2019, ch. 221, §4.

ANNOTATIONS

Official comments.See Commissioners on Uniform State Law official comment to 2-804 UPC.

Recompilations. — Laws 1993, ch. 174, § 64 recompiled former 45-2-804 NMSA 1978, relating to death of a spouse, as 45-2-805 NMSA 1978, effective July 1, 1993.

The 2019 amendment, effective July 1, 2019, made certain technical amendments; and in Paragraph A(2), after "status of", deleted "husband and wife" and added "spouse".

Applicability. — Laws 2019, ch. 221, § 7, provided that the provisions of this act apply to:

A. a governing instrument created before, on or after July 1, 2019;

B. a judicial proceeding commenced on or after July 1, 2019; and

C. a judicial proceeding commenced before July 1, 2019, unless the court finds that application of a particular provision of this act would substantially interfere with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision does not apply and the previous law applies.

The 2011 amendment, effective January 1, 2012, included a revocable trust in the definition of "disposition or appointment of property" and included the commencement of proceedings to terminate all marital property rights in the definition of "divorce or annulment".

The 1995 amendment, effective July 1, 1995, in Subsection D, deleted "that are not revoked by this section" following "governing instrument" and substituted "all provisions revoked by this section" for "the revoked provisions".

Meaning of divorce. — A judgment or decree terminating all property rights pursuant to 40-4-20B NMSA 1978 meets the definition of a divorce pursuant to 45-2-804A(2) NMSA 1978 and is sufficient to revoke governing estate planning documents pursuant to 45-2-804B(1)(a) NMSA 1978. Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701, aff'd in part, rev'd in part, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.

Admitting will to probate during pendency of divorce proceeding. — Where decedent executed a will designating decedent's spouse as the personal representative and beneficiary of decedent's estate; decedent subsequently filed a petition for divorce; and decedent died while the divorce proceeding was pending, the court acted prematurely in adjudicating the validity of the will and admitting the will to probate prior to the completion of the pending divorce proceeding. Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701, aff'd in part, rev'd in part, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.

Construction of unrevoked provisions. — The Uniform Probate Code's provision for revocation of a will in the event of divorce controls the effect of divorce on the construction of the unrevoked portions of the will. In re Estate of Seymour, 1979-NMSC-069, 93 N.M. 328, 600 P.2d 274.

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