A. Where a husband and wife own a homestead as community property and when either the husband or wife dies intestate or dies testate and by the husband's or wife's will devises the husband's or wife's interest in the homestead to the surviving spouse, the homestead passes to the survivor and no probate or administration is necessary.

B. Six months after the death of a decedent, the surviving spouse may record with the county clerk in the county in which the homestead is located an affidavit describing the real property and stating that:

1. (1) six months have elapsed since the death of the decedent as shown on the death certificate;
2. (2) the affiant and the decedent were at the time of the death of the decedent married and owned the homestead as community property;
3. (3) a copy of the deed with a legal description of the homestead is attached to the affidavit;
4. (4) but for the homestead, the decedent's estate need not be subject to any judicial probate proceeding either in district court or probate court;
5. (5) no application or petition for appointment of a personal representative or for admittance of a will to probate is pending or has been granted in any jurisdiction;
6. (6) funeral expenses, expenses of last illness and all unsecured debts of the decedent have been paid;
7. (7) the affiant is the surviving spouse of the decedent and is entitled to title to the homestead by intestate succession as provided in Section 45-2-102 NMSA 1978 or by devise under a valid last will of the decedent, the original of which is attached to the affidavit;
8. (8) no other person has a right to the interest of the decedent in the described property;
9. (9) no federal or state tax is due on the decedent's estate; and

10. (10) the affiant affirms that all statements in the affidavit are true and correct and further acknowledges that any false statement may subject the person to penalties relating to perjury and subornation of perjury.

    C. As used in this section, "homestead" means the principal place of residence of the decedent or surviving spouse or the last principal place of residence if neither the decedent nor the surviving spouse is residing in that residence because of illness or incapacitation and that consists of one or more dwellings together with appurtenant structures, the land underlying both the dwellings and the appurtenant structures and a quantity of land reasonably necessary for parking and other uses that facilitates the use of the dwellings and appurtenant structures, and provided the full value of this property as assessed for property taxation purposes does not exceed five hundred thousand dollars ($500,000).

History: 1978 Comp., § 45-3-1205, enacted by Laws 1985, ch. 12, § 1; 1985, ch. 132, § 1; 2011, ch. 124, § 51; 2011, ch. 134, § 18.

ANNOTATIONS

2011 Multiple Amendments. — Laws 2011, ch. 124, § 51 and Laws 2011, ch. 134, § 18 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2011, ch. 134, § 18, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2011, ch. 124, § 51 and Laws 2011, ch. 134, § 18 are described below. To view the session laws in their entirety, see the 2011 session laws on NMOneSource.com.

Laws 2011, ch. 134, § 18, effective July 1, 2011, in Subsection B, eliminated the requirement that a death certificate be certified; and in Subsection C, increased the maximum value of the property from one hundred thousand dollars ($100,000) to five hundred thousand dollars ($500,000).

Laws 2011, ch. 124, § 51, effective January 1, 2012, in Subsection C, increased the maximum value of the property from one hundred thousand dollars ($100,000) to five hundred thousand dollars ($500,000).