A. A specific devisee has a right to specifically devised property in the testator's estate at the testator's death and:

1. (1) any balance of the purchase price, together with any security agreement, owed by a purchaser at the testator's death by reason of sale of the property;
2. (2) any amount of a condemnation award for the taking of the property unpaid at death;
3. (3) any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;
4. (4) any property owned by the testator at death and acquired as a result of foreclosure or obtained in lieu of foreclosure of the security interest for specifically devised obligation;
5. (5) any real property or tangible personal property owned by the testator at death that the testator acquired as a replacement for specifically devised real property or tangible personal property; and

6. (6) if not covered by Paragraphs (1) through (5) of this subsection, a pecuniary devise equal to the value as of its date of disposition of other specifically devised property disposed of during the testator's lifetime but only to the extent it is established that ademption would be inconsistent with the testator's manifested plan of distribution or that at the time the will was made, the date of disposition or otherwise, the testator did not intend ademption of the devise.

   B. If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated person or if a condemnation award, insurance proceeds or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated person, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds or the recovery.

   C. The right of a specific devisee pursuant to Subsection B of this section is reduced by any right the devisee has pursuant to Subsection A of this section.

   D. Subsection B of this section does not apply if, after the sale, mortgage, condemnation, casualty or recovery, it is adjudicated that the testator's incapacity has ceased and the testator survives the adjudication for at least one year.

   E. For the purposes of the references in Subsection B of this section to an agent acting within the authority of a durable power of attorney for an incapacitated person:

7. (1) no adjudication of incapacity before death is necessary; and
8. (2) the acts of an agent within the authority of a durable power of attorney are presumed to be for the incapacitated person.

History: 1953 Comp., § 32A-2-606, enacted by Laws 1975, ch. 257, § 2-606; repealed and reenacted by Laws 1993, ch. 174, § 45; 2011, ch. 124, § 25.

ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to 2-606 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 45 repealed former 45-2-606 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-606, relating to the failure of testamentary provisions, and enacted a new section, effective July 1, 1993.

The 2011 amendment, effective January 1, 2012, provided that a specific devisee has a right to a pecuniary devise equal to the value of specifically devised property that was disposed of during the testator’s lifetime if ademption would be inconsistent with the testator’s plan of distribution.