Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, January 9, 2014

Article on Oldham v. Oldham


Mark A. Cox (University of New Mexico School of Law, 2013) recently published an article entitled, What’s Right Is Wrong and What to Do About It After Oldham v. Oldham, 42 N.M. L. Rev. 531 (Summer 2012).  Provided below is the introduction to his article:

In Oldham v. Oldham, the New Mexico Supreme Court confronted a strange, but not-too-uncommon, set of facts in the realm of divorce litigation. David and Glenda Oldham filed for divorce after twenty-three years of marriage, but before a final decree of divorce could be entered, David died from brain cancer. Aware of the cancer but prior to their separation, David and Glenda jointly executed a will and a trust. The trust appointed either spouse as trustee, and the will nominated Glenda as personal representative of David's estate and directed that his property pass to the trust. Given this set of facts, the court was left with the peculiar question of which laws to apply in this instance, probate or divorce? The answer to this question would be the difference between upholding or denying the validity of the will and trust. The New Mexico Supreme Court looked to a recently enacted statute, Section 40-4-20(B) of the Domestic Affairs Code, for guidance. This statute directly addresses the division of marital property in cases where one party to a pending divorce action dies. Section 40-4-20(B) permits the domestic court to continue the division of marital property upon the death of one of the divorcing parties and prior to the entry of a final decree as if both parties had survived.

New Mexico's approach goes against the grain of most jurisdictions, which adhere to the common law rule of abatement. It states that, “[w]hen a party to a dissolution action dies before the entry of a decree, the marriage terminates as a matter of law. The court divests of jurisdiction over the matter, including any property rights, as they are incidental to a final decree of dissolution.” New Mexico's domestic affairs statute circumvents common law and the majority view by applying the laws of divorce over the laws of the estate when a party to a pending divorce dies before the final decree can be entered. The New Mexico Supreme Court determined that, even though the courts retains jurisdiction to conclude property division, such jurisdiction does not allow a court to grant a posthumous divorce that would result in the revocation of the will and trust. This outcome centers on the interpretation and interaction of New Mexico's Domestic Affairs statute and its Uniform Probate Code.

This note explores the lengthy and multifarious history of property division law and the rise of equitable distribution in common-law states, then compares divorce and estate laws. This note then follows Oldham's journey through New Mexico's court system, thoroughly explaining the supreme court's opinion. Next, it inspects Oldham through the lens of history and equity, and suggests that the court's outcome frustrates the public policy behind New Mexico's Domestic Affairs statute. But, this note points out, the court was left with few alternatives. The Uniform Probate Code's own language conflicts with itself, especially in relation to the Domestic Affairs statute. This note suggests language that could be added to correct this conflict. Finally, this note explores the ramifications of Oldham and offers advice for attorneys practicing divorce and estate law in New Mexico.


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