1. A. Except as provided in Subsection B of this section, if a decedent has left no written instructions regarding the disposition of the decedent's remains, the following persons are legal next of kin, in the order listed, and shall determine the means of disposition, not to be limited to cremation, of the remains of the decedent:

   1. (1) the surviving spouse;
   2. (2) a majority of the surviving adult children of the decedent;
   3. (3) the surviving parents of the decedent;
   4. (4) a majority of the surviving siblings of the decedent;
   5. (5) the adult person of the next degree of kinship in the order named by New Mexico law to inherit the estate of the decedent; or
   6. (6) an adult who has exhibited special care and concern for the decedent and is aware of the decedent's views and desires regarding the disposition of the decedent's body and who is willing and able to make a decision about the disposition of the decedent's body.
2. B. If a decedent left no written instructions regarding the disposition of the decedent's remains, died while serving in any branch of the United States armed forces, the United States reserve forces or the national guard and completed a United States department of defense record of emergency data form or its successor form, the person authorized by the decedent to determine the means of disposition on a United States department of defense record of emergency data form shall determine the means of disposition, not to be limited to cremation.
3. C. The state, county, municipality or other person having charge or control of the body of a decedent shall notify or attempt to notify the legal next of kin.

History: Laws 1993, ch. 200, § 2; 1995, ch. 17, § 1; 2011, ch. 22, § 2; 2023, ch. 162, § 6.

ANNOTATIONS

Cross references. — For cremations, see 61-32-19 NMSA 1978.

The 2023 amendment, effective July 1, 2023, revised provisions related to the priority of persons who may decide the means of disposition of a decedent's remains when the decedent has left no written instructions regarding the disposition of the decedent's remains; in Subsection A, in the introductory clause, after "following persons", added "are legal next of kin", deleted former Paragraph A(5) and redesignated former Paragraph A(6) as Paragraph A(5), and added new Paragraph A(6); and added new Subsection C.

The 2011 amendment, effective June 17, 2011, authorized a person designated on a United States department of defense record of emergency data form to direct the disposition of the remains of a decedent who left no written instructions and who died while serving in the armed forces, reserve forces or national guard.

The 1995 amendment, effective June 16, 1995, inserted "adult" in Subsection B.

Burial plan. — Where the decedent’s contract for a reserved burial plot specified only where the decedent was to be buried, the decedent’s surviving spouse alone had the authority to arrange the details of the decedent’s burial and had the authority to contract with the cemetery to convert the decedent’s single plot into a double plot. Eisert v. Archdiocese of Santa Fe, 2009-NMCA-042, 146 N.M. 179, 207 P.3d 1156, cert. denied, 2009-NMCERT-004, 146 N.M. 641, 213 P.3d 791.