Updated September 5, 2026. Quick answer: New Mexico has no spousal elective share to take against a will, because it does not need one: a surviving spouse already owns an automatic one-half interest in community property under NMSA 1978 Sec. 45-2-807, and a will can only dispose of the decedent’s own half plus any separate property.
What New Mexico actually sets out
| What the statute sets out | What it says |
|---|---|
| NMSA 1978 Sec. 45-2-807 | “Upon the death of either spouse, one-half of the community property belongs to the surviving spouse, and the other half is subject to the testamentary disposition of the decedent, except that community property that is joint tenancy property under Subsection B of Section 40-3-8 NMSA 1978 shall not be subject to the testamentary disposition of the decedent.” |
| What protects the surviving spouse instead | not applicable; New Mexico adopted the Uniform Probate Code’s general provisions but not its separate elective-share article; community property already vests half in the surviving spouse automatically |
| Regime type | no elective share; community property |
| Can it be waived | not applicable; no elective share exists to waive |
| Time limit to file | not applicable |
How it works in practice
- Community property already gives the surviving spouse automatic ownership of half of what the couple earned during the marriage; a will can only dispose of the decedent’s own half plus separate property, so there is no separate election to make.
- Not applicable here: there is no elective share to plan around in the first place.
- Waiver: Not applicable; no elective share exists to waive.
- There is no filing deadline here because there is no election to file.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for New Mexico specifically, and its own numbers above should be used instead of the calculator’s national default for a New Mexico estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This session confirmed the core figure above against a primary or verbatim-mirror source, with one open point: Official nmonesource.com returned 403; confirmed via Justia mirror, section-title index cross-checked against 3 independent secondary reproductions.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in New Mexico is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.