TN 38 (01-12)

GN 00306.570 New Mexico Intestacy Law

A. Prior to 07/01/86, child or father acquires status of child or parent if:

  1. parents intermarry; or

  2. (I) the father has recognized the child in writing signed by reputed father (in presence of two competent witnesses) showing upon its face that it was signed with intent to recognize child as heir (NOTE: if the NH died, or child's application was filed in a life case, before 06/14/47, recognition may have been either general and notorious, or in a signed writing); or

  3. (I) on and after 07/01/76:

    1. the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

    2. the father has recognized child and recognition has been either (1) general and notorious, or (2) in writing signed by reputed father showing upon its face that it was signed with intent to recognize child as heir; or

    3. the child's paternity is established by an adjudication before the father's death by a preponderance of the evidence, or is established thereafter by a preponderance of the evidence.

However, father acquires status of parent under 2. above only if recognition of relationship has been mutual, and under 3.c. above only if he has openly treated the child as his and has not refused to support the child.

If the writing referred to in 2. and 3.b. above has been lost or destroyed, declarations of deceased persons may be used to prove such loss or destruction, the existence and contents of the writing, and its genuineness if the declarations are corroborated by proof of the father's general and notorious recognition of the child.

B. Effective 07/01/86 to 12/31/2009, child or father acquires status of child or parent if:

  1. the alleged father and the child's natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity or divorce, or after a decree of separation is entered by a court; *or

  2. before the child's birth, the alleged father and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

    1. if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity or divorce; or

    2. if the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation;* or

  3. after the child's birth, the alleged father and the child's natural mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

    1. the alleged father has acknowledged his paternity of the child in writing filed with the Vital Statistics Bureau of the Public Health Division of the Department of Health; or

    2. with his consent, the alleged father is named as the child's father on the child's birth certificate; or

    3. the alleged father is obligated to support the child under a written voluntary promise or by court order;*or

  4. while the child is under the age of majority (18), the alleged father openly holds out the child as his natural child and has established a personal, financial or custodial relationship with the child;*or

  5. at or before the birth of the child, the alleged father completes an acknowledgment of paternity provided by the institution where the child was born, or he acknowledges his paternity of the child in writing filed with the Vital Statistics Bureau of the Public Health Division of the Department of Health. The acknowledgment provided by the birth institution must include or have attached to it a sworn statement by the mother consenting to the assertion of paternity, and a sworn statement by the father that he is the natural father of the child;*or

  6. effective 06/16/89, blood or genetic testing properly performed by a qualified individual and evaluated by an expert shows a 99% or higher probability that he is the father.*

    *NOTE: Items B. 1-6 create presumptions of paternity that may be rebutted only by clear and convincing evidence.

  7. the father voluntarily legitimates the child through an affidavit or acknowledgment of paternity provided by the birthing institution, a designated representative, the attending physician, or attending midwife. The acknowledgment shall contain or have attached to it:

    1. a sworn statement by the mother consenting to the assertion of paternity;

    2. a sworn statement by the father that he is the natural father of the child;

    3. written information, furnished by the Department of Human Services explaining the implications of signing, including legal parental rights and responsibilities; and

    4. the Social Security numbers of both parents.

    5. If a married mother claims that her husband is not the father of the child, the husband agrees that he is not the father, and the alleged biological father agrees that he is the father, the acknowledgment of paternity may be signed by each of them and duly notarized; or

  8. if, with the consent of her husband, a woman is artificially inseminated with semen donated by a man not her husband, the husband is treated as the child's natural father as long as the husband's consent is in writing and signed by him and his wife. Any donor of semen provided for use in artificial insemination of a woman other than the donor's wife may be treated as if he were the natural father of the child if he so consents in writing signed by him and the woman; or

  9. the child's paternity is established by a civil action brought no later than 3 years after the child has reached age 18. (However, such a civil action is still available for any child for whom a paternity action was brought and dismissed on or after 08/16/84 because of the application of a statute of limitations of less than 18 years.) For claims filed on or after 11/27/98, or pending on that date, a court order of paternity is no longer required; SSA may make the determination of paternity using a preponderance of the evidence standard of proof.

    Evidence relating to paternity may include:

    1. evidence of sexual intercourse between the mother and alleged father at any possible time of conception;

    2. an expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;

    3. blood or genetic test results, if available, of the statistical probability of the alleged father's paternity, based on a test performed by a qualified individual and evaluated by an expert; and

    4. all other evidence relevant to the issue of paternity of the child.

C. Effective 01/01/2010, child or father acquires status of child or parent if:

  1. the purported father and the child's biological mother are or have been married to each other and the child is born during the marriage or not more than 300 days after the date the marriage terminated by death, annulment, declaration of invalidity, divorce, or after decree of separation;** or

  2. before the child's birth, the purported father and the child's biological mother attempted to marry each other in apparent compliance with the law, although the attempted marriage is or could be declared invalid, and the child is born during the attempted marriage or not more than 300 days after the date the attempted marriage terminated by death, annulment, declaration of invalidity, divorce, or after decree of separation;** or

  3. after the child’s birth, the purported father married the mother of the child in apparent compliance with the law, regardless of whether the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:

    1. the assertion is in an acknowledgment of paternity on a form provided by the vital records and health statistics bureau of the New Mexico department of health;

    2. he agreed to be and is named as the child’s father on the child’s birth certificate; or

    3. he promised in a record to support the child as his own;** or

  4. for the first two years of the child’s life, the purported father resided in the household with the child and openly held out the child as his own;** or

    ** NOTE: Items C. 1-4 create presumptions of paternity that may only be rebutted by admissible genetic testing excluding the presumed father as the father of the child or identifying another man as the father of the child.

    A presumed father may also sign a denial of paternity, but the denial is valid only if another man files an acknowledgment of paternity in the same procedure described in section C. 5, below. The denial must be on a form provided by the vital records and health statistics bureau of the New Mexico department of health (Denial of Paternity form), be signed and notarized under penalty of perjury, and the presumed father must not have been adjudicated the father of the child or have acknowledged his paternity unless he successfully rescinded the acknowledgement or the acknowledgement was successfully challenged.

  5. the father executed an acknowledgement of paternity and it is not later rescinded or successfully challenged and such acknowledgement:

    1. is on a form provided by the vital records and health statistics bureau of the New Mexico department of health (Acknowledgment of Paternity form);

    2. is signed and notarized under penalty of perjury, by the mother and the man seeking to establish paternity;

    3. states that the child whose paternity is being acknowledged does not have a presumed father or has a presumed father whose full name is stated, and does not have another acknowledged or adjudicated father;

    4. states whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and

    5. states that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and may be challenged only within two years and only under limited circumstances; or

      NOTE: An acknowledgement is void if:

      1. another man is the acknowledged father and such acknowledgement has not been rescinded through a judicial proceeding which excludes, by admissible genetic testing, the acknowledged father as the father of the child or identifying another man as the father of the child; or

      2. another man is the adjudicated father; or

      3. another man is the presumed father, and such individual has not filed a denial of paternity with the vital records and health statistics bureau of the New Mexico department of health (Denial of Paternity form).

  6. a parentage test excludes at least 99% of the male population from the possibility of being the father and indicates a combined paternity index of at least 100 to 1. In addition, the test report must be authenticated as follows:

    1. The test report must state that testing took place in a laboratory accredited by the American Association of Blood Banks (AABB) or a successor, the American Society for Histocompatibility and Immunogenetics or a successor, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services;

    2. A laboratory designee must sign the test report under penalty of perjury; and

    3. Testimony or documentation establishes reliable chain of custody of the samples. Documentation from the testing laboratory is sufficient to establish a reliable chain of custody without further testimony if the documentation includes:

      1. The name and photograph of each individual whose specimens have been taken,

      2. The name of each individual who collected the specimens,

      3. The places in which the specimens were collected and the date of each collection,

      4. The name of each individual who received the specimens in the testing laboratory,

      5. The dates the specimens were received in the laboratory, and

      6. The accreditation of the testing facility; or

    NOTE: The results of genetic testing can only be rebutted by other genetic tests. Parentage tests that are properly authenticated and show merely the possibility of paternity (i.e., do not exclude the alleged father) but do not exclude 99% of the male population can still be considered relevant evidence of paternity. In such circumstance, additional evidence will be required to establish paternity under the preponderance of the evidence standard. If there is no existing RCC opinion preced