Estate Planning After Divorce in New Mexico

New Mexico law automatically revokes some provisions that benefit your ex-spouse after divorce. But the automatic protections have critical gaps — and relying on them without updating your documents can leave your assets going to the wrong person.

What State Law Revokes Automatically

Under the New Mexico Uniform Probate Code (NMSA 1978 Chapter 45), the entry of a final divorce decree automatically revokes:

• Bequests in your will — any property, money, or assets you left to your ex-spouse
• Fiduciary appointments — your ex-spouse's role as executor, personal representative, or trustee
• Revocable trust provisions — any trust benefits directed to your ex-spouse

The New Mexico Uniform Power of Attorney Act (NMSA 1978 § 45-5B-301) also terminates your ex-spouse's authority to act as your agent under a durable financial power of attorney, unless the document's "Special Instructions" section explicitly states the authority survives divorce.

These are meaningful protections. But they only cover state-governed instruments.

What State Law Does NOT Revoke

ERISA-governed accounts. Employer-provided life insurance, 401k plans, 403b accounts, and corporate pensions are governed by federal law. ERISA preempts New Mexico's revocation statutes entirely. These accounts pay out to whoever is listed on the beneficiary designation form — regardless of your divorce decree, your will, or any verbal agreement.

Transfer-on-death (TOD) accounts. Brokerage accounts with TOD designations pass directly to the named beneficiary outside of probate. State revocation rules do not apply.

Payable-on-death (POD) accounts. Bank accounts and CDs with POD designations work the same way — the named beneficiary receives the funds regardless of your will.

Individual life insurance policies. Non-employer life insurance policies are typically governed by contract law, not the Uniform Probate Code. The beneficiary on the policy controls.

What You Need to Do

Draft a New Will

Do not rely on the automatic revocation to "fix" your old will. The revocation treats your ex-spouse as having predeceased you, which means the residuary clause (the catch-all provision) controls where those assets go. If your residuary clause is vague or outdated, your assets may end up in probate or go to someone you did not intend.

Draft a complete new will that reflects your current wishes, names new beneficiaries, and appoints a new executor.

Execute a New Durable Power of Attorney

Even though state law terminates your ex-spouse's authority, financial institutions may not know about the divorce. They may continue to honor the old document if your ex-spouse presents it. Execute a new Statutory Durable Power of Attorney under NMSA 1978 § 45-5B-301, formally revoking the prior document. Deliver written notices of revocation to every bank and financial institution that had a copy.

Execute a New Healthcare Directive

Your healthcare power of attorney (advance directive) likely names your ex-spouse as your healthcare agent. Replace it with a new directive naming someone you trust, and provide copies to your primary care physician and local hospital.

Update Every Beneficiary Designation

Contact each of these and submit new beneficiary forms:

• Employer life insurance (through HR)
• 401k and 403b accounts (through the plan administrator portal)
• IRA accounts (through your custodian — Fidelity, Schwab, Vanguard, etc.)
• State pensions — NMERB and NMPERA beneficiary designations do not update automatically on divorce
• Individual life insurance policies
• POD bank accounts
• TOD brokerage accounts

Get written confirmation of every change. Do not assume a phone call or online submission was processed — follow up in writing.

Revoke or Amend Revocable Trusts

If you created a revocable living trust during your marriage, amend or restate it to remove your ex-spouse as beneficiary or successor trustee. The automatic revocation under the Probate Code covers trust benefits, but a formal amendment eliminates any ambiguity.

Do This Within 30 Days

Estate planning updates should happen within the first 30 days after your divorce is finalized. If something happens to you before the changes are made, the old beneficiary designations control — and for ERISA-governed accounts, your estate will have no legal basis to challenge them.

The New Mexico Post-Divorce Checklist includes a beneficiary audit worksheet and estate plan update tracker that walks through every account and document, so nothing gets overlooked.

See more New Mexico guides →