New Mexico Living Trust
The New Mexico rules that shape the document: the Section 46A-6-602(B)(1) solo-spouse revocation of a community-property trust, the total absence of a spousal elective share, and the dormant Estate Tax Act pegged to a federal credit that no longer exists.
Find out where you stand in New Mexico
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Introduction
A living trust lets you transfer assets to a trustee during your lifetime so they pass to your beneficiaries without going through probate, but only for what you actually fund into it; anything still titled in your own name goes through New Mexico probate regardless of what the trust says. New Mexico adds a trap almost no other state creates this way: because New Mexico's Uniform Trust Code, NMSA 1978 Section 46A-6-602(B)(1), carries the model act's rule unmodified, either spouse can revoke an entire jointly funded community-property living trust acting alone, with only after-the-fact notice to the other spouse required; amendment, by contrast, needs both spouses acting together. New Mexico also has no spousal elective share at all, so a surviving spouse's protection comes from automatic ownership of half of all community property plus two small fixed-dollar probate allowances, not a percentage claim against the trust. Creating the trust itself requires no notary, witnesses, or will formalities (NMSA 1978 Section 46A-4-402).
Key Things to Know
- 1
New Mexico's solo-revocation trap: if this trust holds community property, NMSA 1978 Section 46A-6-602(B)(1) lets either spouse revoke the entire trust acting alone. Amendment requires both spouses acting jointly, and the trustee must notify the other spouse after a unilateral revocation, but only after the fact, not in advance.
- 2
New Mexico has no spousal elective share and no augmented estate; the Probate Code's elective-share article, Sections 45-2-201 to 45-2-207, is entirely reserved. A surviving spouse is protected instead by automatic ownership of half of all community property and, if the probate estate is short, a fixed statutory family allowance of $30,000 (Section 45-2-402) and a fixed personal property allowance of $15,000 (Section 45-2-403), confirm the current figures before relying on them, that can reach this trust's assets (Section 46A-5-505(A)(3)).
- 3
No notary, witness, or will formality is required to create a New Mexico living trust. Section 46A-4-402 lists only capacity, intent, a definite beneficiary, and a trustee with duties, and Section 46A-4-407 will enforce a purely oral trust on clear and convincing evidence. The deed funding real property into the trust, however, must be acknowledged before a notarial officer to be recorded (Section 14-8-4).
- 4
Whether your homestead exemption survives once your house is deeded into this trust is not settled in New Mexico. Section 42-10-9 exempts a primary residence from creditors, a bankruptcy trustee, or a probate executor at a fixed statutory base of $150,000, or $300,000 if a spouse died within the prior two years; confirm the current figure before relying on it. The statute is silent on funding into a trust and no reported New Mexico decision resolves it squarely. Ask a New Mexico attorney before relying on it.
- 5
New Mexico has no real estate transfer tax, so funding real property into this trust costs nothing beyond the deed and recording. A deed from a person to a trustee, or from a trustee to a beneficiary, for nominal consideration is also exempt from the residential property transfer declaration affidavit otherwise required by Section 7-38-12.1.
- 6
A New Mexico certificate of trust under Section 46A-10-1013 must state the trust's taxpayer identification number, one item the bare model act does not require, so a bank or title company can rely on it instead of the full instrument. No New Mexico statute requires a funding deed to disclose beneficiary names or addresses, unlike some states.
- 7
New Mexico's Estate Tax Act, Sections 7-7-1 to 7-7-12, was never repealed; it is a pick-up tax defined to equal the federal state-death-tax credit under IRC Section 2011, and that credit was eliminated for deaths after 2004, so the New Mexico tax computes to zero today without any state repeal. This trust also gives you no creditor protection during your lifetime; Section 46A-5-505(A)(1) subjects revocable trust assets to your own creditors the same as property you own outright.
Key decisions before you file
Before you file a Living Trust in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Living Trust guide walks through them.
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New Mexico Requirements for Living Trust
New Mexico Solo-Spouse Revocation of a Community-Property Trust
NMSA 1978 Section 46A-6-602(B)(1) lets either spouse revoke an entire jointly funded community-property living trust acting alone; amendment requires both spouses acting together, and the trustee must notify the other spouse only after a unilateral revocation, not in advance.
New Mexico No Spousal Elective Share
New Mexico's Probate Code reserves its elective-share article (Sections 45-2-201 to 45-2-207) entirely. A surviving spouse's protection instead comes from automatic ownership of half of all community property and, if the probate estate is short, a fixed statutory family allowance of $30,000 (Section 45-2-402) and personal property allowance of $15,000 (Section 45-2-403), confirm current figures before relying on them, that can reach trust assets under Section 46A-5-505(A)(3).
New Mexico Homestead Interaction Unresolved
NMSA 1978 Section 42-10-9 exempts a primary residence from creditors at a fixed statutory base of $150,000, or $300,000 if a spouse died within the prior two years; confirm the current figure before relying on it. The exemption is silent on whether it survives after the residence is deeded into a revocable trust, and no reported New Mexico case resolves it. Flag this as an open question for the reader.
New Mexico No Transfer Tax on Funding Deeds
New Mexico has no state-level real estate transfer tax, and a deed from a person to a trustee, or from a trustee to a beneficiary, for nominal consideration is exempt from the residential property transfer declaration affidavit under Section 7-38-12.1(D)(15) and (D)(17).
New Mexico Certificate of Trust Requires a Taxpayer ID Number
NMSA 1978 Section 46A-10-1013 lets the trustee furnish a certification of trust in place of the full instrument, but New Mexico's version requires the trust's taxpayer identification number, an item the bare Uniform Trust Code model does not list. A recipient who demands the full instrument in bad faith is liable for the trustee's resulting damages under Section 46A-10-1013(H).
New Mexico Dormant Estate Tax and Creditor Claim Windows
New Mexico's Estate Tax Act (Sections 7-7-1 to 7-7-12) was never repealed and computes to zero only because the federal credit it references was eliminated after 2004. Separately, a creditor's claim against the trust as the settlor's principal nonprobate asset must be brought within one year of death (Section 45-6-102(H)), and a trust validity contest within three years of death or 120 days after notice, whichever is earlier (Section 46A-6-604(A)).