If a spouse dies, does the estate automatically go to the remaining spouse?

UPDATED: Oct 1, 2022

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If a spouse dies, does the estate automatically go to the remaining spouse?

We have not drawn up a will yet. If one of us dies, can any of the
children try to lay claim to our assets?

Asked on February 23, 2019 under Estate Planning, New Mexico


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If there is no will, the estate passes by what is called "intestate succession": the rules for who gets what if there is no will.
In your state (New Mexico), if one member of a married couple dies without a will and there are children, the surviving spouse inherits all of the deceased's "community property" (to oversimplify: anything acquired during marriage other than an inheritance or gift to only one of you) and 1/4 the "separate" property" (inheritances, gifts, and anything owned or acquired by the deceased pre-marriage), while the children share the other 3/4 of the separate property.

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