Brown v. Garcia (In re Estate of Brown), A-1-CA-37152

CitationNo. A-1-CA-37152
Case DateOctober 08, 2020
CourtCourt of Appeals of New Mexico

LORRAINE BROWN, Plaintiff-Appellant,
CYNTHIA GARCIA, Personal Representative, Defendant-Appellee,


No. A-1-CA-37152


October 8, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

George P. Eichwald, District Judge

Law Office of Benjamin Hancock, P.C.
Benjamin Hancock
Albuquerque, NM

for Appellant

Betzer, Roybal & Eisenberg P.C.
Gary D. Eisenberg
Albuquerque, NM

for Appellee



{1} Plaintiff Lorraine Brown, the surviving spouse of Robert R. Brown (Decedent), claimed the family allowance and personal property allowance from Decedent's estate (the Estate), pursuant to NMSA 1978, Section 45-2-402 (1995) (family allowance) and

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NMSA 1978, Section 45-2-403 (2011) (personal property allowance). The district court granted the allowances but reduced them by the value of items of property Plaintiff had already received from the Estate and the amount of income tax paid on Plaintiff's behalf. Arguing that the district court erred by reducing the amount of the allowances, Plaintiff appeals. We affirm.


{2} Decedent died on January 25, 2017. After her husband died, Plaintiff filed a notice of claim against the Estate for "the payment of the statutory Family Allowance and statutory Personal Property Allowance in the total amount of $45,000" in the Sandoval County probate court. Plaintiff requested "that the money owed to [Plaintiff] be paid to [Plaintiff] from [the] Estate . . . prior to the payment of any other claims or expenses, as said allowances enjoy priority over all other claims." The personal representative of the Estate, Cynthia Garcia (Defendant), Decedent's daughter, denied Plaintiff's claim. Upon Plaintiff's petition, the matter was transferred from probate court to district court. Plaintiff's petition sought both to transfer the matter and to enforce Plaintiff's claim for the statutory allowances. In response to Plaintiff's petition, Defendant moved the district court to disallow the claim because Plaintiff had already received property and tax benefits from the Estate in excess of the statutory allowances. Plaintiff's petition was granted and the district court held an evidentiary hearing during which both parties presented evidence and arguments regarding the nature and value of property Plaintiff received from the Estate. At the close of the hearing, the district court granted Plaintiff both the family and personal property allowances but reduced the amount by $17,218. The district court reduced the allowances based on evidence establishing that Plaintiff removed property worth $16,310 from Decedent's home after his death and by finding that the Estate's payment of joint income tax liability provided Plaintiff with a benefit of $908. Plaintiff appeals from the district court's decision.


{3} Upon a spouse's death, a surviving spouse is entitled to family and personal property allowances pursuant to the Probate Code totaling $45,000, even when, as in this case, the surviving spouse is not entitled to anything further from the Estate. See §§ 45-2-402, -403. "The clear policy behind the statutory allowances is to provide a minimum guarantee to the surviving spouse that is insulated from decedent's intent so that a surviving spouse is not left penniless and abandoned." In re Estate of Salopek, 2005-NMCA-016, ¶ 10, 137 N.M. 47, 107 P.3d 1. The family allowance of $30,000 "is exempt from and has priority over all claims against the estate" and is "in addition to any share passing to the surviving spouse or minor or dependent children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument." Section 45-2-402. The personal property allowance entitles a surviving spouse to a value "not exceeding fifteen thousand dollars ($15,000) in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances and personal effects." Section 45-2-403.

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{4} The Probate Code allows distributable assets of a decedent's estate to be satisfied through distributions in-kind such as personal property. NMSA 1978, § 45-3-906 (1993). Under this section of the Code, a family allowance or personal property allowance may be satisfied in-kind provided:

(a) the person entitled to the payment has not demanded payment in cash;

(b) the property distributed in kind is valued at fair market value as of the date of its distribution; and

(c) no residuary devisee has requested that the asset in question remain a part of

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