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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 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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