A. As used in this section:
(1) "disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument; and
(2) "revocable", with respect to a disposition, appointment, provision or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate the decedent's own self in place of the decedent's killer and the decedent then had capacity to exercise the power.
B. An individual who feloniously and intentionally kills the decedent forfeits all benefits pursuant to the provisions of Chapter 45, Article 2 NMSA 1978 with respect to the decedent's estate, including an intestate share, an omitted spouse's or child's share, a family allowance and a personal property allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed the killer's intestate share.
C. The felonious and intentional killing of the decedent:
(1) revokes any revocable:
(a) disposition or appointment of property made by the decedent to the killer in a governing instrument;
(b) provision in a governing instrument executed by the decedent conferring a general or nongeneral power of appointment on the killer; and
(c) nomination of the killer in a governing instrument executed by the decedent, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee or agent; and
(2) severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship, transforming the interests of the decedent and killer into equal tenancies in common.
D. A severance pursuant to the provisions of Paragraph (2) of Subsection C 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 killer 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.
E. Provisions of a governing instrument executed by the decedent are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
F. An acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from the killer's wrong.
G. After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent's killer for purposes of this section. In the absence of a conviction, the court upon the petition of an interested person shall determine whether under the preponderance of evidence standard the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that under that standard the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section.
H. 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 executed by the decedent affected by an intentional and felonious killing or for having taken any other action in good faith reliance on the validity of the governing instrument executed by the decedent upon request and satisfactory proof of the decedent's death before the payor or other third party received written notice of a claimed forfeiture or revocation under this section. 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 under this section.
Written notice of a claimed forfeiture or revocation 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 written notice of a claimed forfeiture or revocation pursuant to the provisions of this section, 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 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.
I. A person who purchases property for value and without notice or who receives 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 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 person who, not for value, receives a payment, item of property or any other benefit to which the 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.
J. 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 person who, not for value, receives the payment, item of property or any other benefit to which the 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 would have been entitled to it were this section or part of this section not preempted.
History: 1953 Comp., § 32A-2-803, enacted by Laws 1975, ch. 257, § 2-803; repealed and reenacted by Laws 1993, ch. 174, § 62; 1995, ch. 210, § 23; 2011, ch. 124, § 30.
ANNOTATIONSOfficial comments. — See Commissioners on Uniform State Law official comment to 2-803 UPC.
Repeals and reenactments. — Laws 1993, ch. 174, § 62 repealed former 45-2-803 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-803, and enacted a new section, effective July 1, 1993.
Cross references. — For murderer not to profit from wrongdoing, see 30-2-9 NMSA 1978.
The 2011 amendment, effective January 1, 2012, in Subsection C, provided that the killing transforms the interest of the killer and the decedent in jointly held property into equal tenancies in common.
The 1995 amendment, effective July 1, 1995, in Subsection E, deleted "that are not revoked by this section" following "executed by the decedent" and substituted "provisions revoked by this section" for "revoked provisions".
Applicability. — This section is limited to benefits that pass under the Uniform Probate Code and did not apply to forfeit of any rights under the Wrongful Death Act (41-2-1 NMSA 1978). Aranda v. Camacho, 1997-NMCA-010, 122 N.M. 763, 931 P.2d 757.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.
26A C.J.S. Descent and Distribution § 47; 46A C.J.S. Insurance §§ 1576, 1584; 48A C.J.S. Joint Tenancy §§ 3, 17; 94 C.J.S. Wills § 104.