2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 10 - Exemptions › Section 42-10-1 - Exemptions.

A. The following shall be exempt from receivers or trustees in bankruptcy or other insolvency proceedings, fines, attachment, execution, garnishment, levy or foreclosure by a judgment creditor:
(1) a person's aggregate interest in household goods and furnishings, not exceeding a value of seventy-five thousand dollars ($75,000);
(2) a person's aggregate interest in motor vehicles, not exceeding ten thousand dollars ($10,000) in value;
(3) a person's interest in a wedding band and an engagement ring and a person's interest in additional jewelry held primarily for the use of the person, the person's spouse or any dependent of the person, not exceeding five thousand dollars ($5,000) in the aggregate for this additional jewelry;
(4) works of art or artwork of the person or any relative of the person, not exceeding a value of two thousand five hundred dollars ($2,500) in the aggregate;
(5) tools, equipment, implements, professional books, instruments, inventory, supplies and materials reasonably necessary for use in the person's trade, profession, business or occupation, or that of the person's spouse, not exceeding fifteen thousand dollars ($15,000) in the aggregate;
(6) the person's right to receive:
(a) social security benefits;
(b) veteran's benefits;
(c) disability, illness, unemployment or workers' compensation benefits;
(d) public benefits such as medicaid, medicare, food stamps or other aid from a government public assistance program;
(e) alimony, family or domestic support or separate maintenance to the extent reasonably necessary for the support of the person or any dependent of the person; and
(f) payment pursuant to a stock bonus, pension, profit-sharing individual retirement account, annuity or similar plan or contract on account of illness, disability, death or length of service, to the extent reasonably necessary for the support of the person or any dependent of the person, unless such plan or contract does not qualify pursuant to Section 401(a), 403(a), 403(b) or 408 of the Internal Revenue Code of 1986;
(7) refundable federal and state tax credits;
(8) exempt wages as defined by Section 35-12-7 NMSA 1978;
(9) any stimulus payment held by or payable to the person or the person's dependents in any form;
(10) an interest in or proceeds from a pension, individual retirement account, annuity, profit-sharing plan and any other retirement account;
(11) an individual retirement account that would qualify for tax exemptions under 26 U.S.C. 408 or any similar individual retirement account;
(12) an educational savings account that would qualify for tax exemptions under 26 U.S.C. 529 or any similar educational savings account;
(13) a health savings account that would qualify for tax exemptions under 26 U.S.C. 223 or any similar health savings account; and
(14) a person's aggregate interest, not exceeding fifteen thousand dollars ($15,000), in any personal property, tangible or intangible, not otherwise specified in this subsection, including any deposits in financial or investments accounts or personal property that exceeds the monetary limits set forth in this section; provided that for an individual or sole proprietor who is a defendant in any action except a bankruptcy action, the maximum cumulative amount that a defendant may claim as exempt in a depository or investment account is two thousand four hundred dollars ($2,400), plus any money derived from the sources set forth in Paragraphs (6) through (11) of this subsection.
B. As used in this section, "household goods and furnishings" means items primarily used by or for the support and maintenance of the household of the person or the person's spouse, family and dependents, including:
(1) furniture;
(2) appliances such as a refrigerator, stove, oven, freezer, clothes washer, clothes dryer, dishwasher, microwave, coffee maker, toaster and vacuum cleaner;
(3) clothing and personal effects;
(4) electronic equipment such as televisions, radios, cellular telephones, computers, computer equipment, digital or compact disc players and other electronic consumer devices;
(5) medical equipment, supplies and professionally prescribed health aids reasonably necessary for the care and support of the person or any dependent of the person;
(6) musical instruments, not exceeding four thousand dollars ($4,000) in the aggregate;
(7) toys, games, sports, hobby and craft equipment, materials and supplies, not exceeding two thousand five hundred dollars ($2,500) in the aggregate;
(8) books; and
(9) two firearms.
C. Property exempted pursuant to the provisions of this section shall be valued at the property's fair market value.
History:
1953 Comp., § 24-5-1, enacted by Laws 1971, ch. 215, § 1; 1979, ch. 182, § 1; 1981, ch. 113, § 1; 1983, ch. 69, § 1; 2023, ch. 104, § 4.
ANNOTATIONS
Repeals and reenactments.
— Laws 1971, ch. 215, § 1, repealed 24-5-1, 1953 Comp., relating to property exemptions for the family head and widows, and enacted a new section.
Cross references.
— For exemption from legal process for Public Employees Retirement Act benefits,
see
10-11-135 NMSA 1978.
For exemption from legal process for Judicial Retirement Act benefits,
see
10-12B-7 NMSA 1978.
For exemption from legal process for Magistrate Retirement Act benefits,
see
10-12C-7 NMSA 1978.
For national guard equipment and uniforms,
see
20-5-2 NMSA 1978.
For exemption from legal process for Educational Retirement Act benefits,
see
22-11-42 NMSA 1978.
For exemption for public welfare assistance,
see
27-2-21 NMSA 1978.
For state police pension funds,
see
29-4-10 NMSA 1978.
For exemption from legal process for interest from state police pension fund,
see
29-4-10 NMSA 1978.
For exemption of materials from attachment or execution for purchaser's debts,
see
48-2-15 NMSA 1978.
For exemption of unemployment compensation benefits,
see
51-1-37 NMSA 1978.
For exemption for workmen's compensation claims,
see
52-1-52 NMSA 1978.
For property exemptions where assignments for benefit of creditors,
see
56-9-44 NMSA 1978.
For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts,
see
Rules 1-065.1, 2-801, and 3-801 NMRA, respectively.
For form for claim of exemptions on executions,
see
Rule 4-803 NMRA.
For form for order on claim of exemption and order to pay in execution proceedings,
see
Rule 4-804 NMRA.
For form for application for writ of garnishment and affidavit,
see
Rule 4-805 NMRA.
For form for notice of right to claim exemptions from execution,
see
Rule 4-808A NMRA.
For form for claim of exemption from garnishment,
see
Rule 4-809 NMRA.
The 2023 amendment,
effective July 1, 2023, completely rewrote the section.
Applicability.
— Laws 2023, ch. 104, § 13 provided that the provisions of Laws 2023, ch. 104 apply to actions filed on or after July 1, 2023.
The 1983 amendment,
effective July 1, 1983, inserted "in the amount of four thousand dollars ($4,000), jewelry in the amount of twenty-five hundred dollars ($2,500)" in the first sentence.
The 1981 amendment,
effective March 21, 1981, inserted "tools of the trade in the amount of fifteen hundred dollars ($1,500)" and deleted "tools of the trade" preceding "books" near the beginning of the first sentence.
The 1979 amendment
substituted "is exempt" for "may be held exempt" following "supporting another person" near the middle of the first sentence and substituted "exempted" for "to be exempted" near the beginning of the second sentence.
Division of property in divorce proceeding.
— Where the husband's separate personal property was liquidated to satisfy the wife's community property share entitlement, the husband was not entitled to claim an exemption.
Muse v. Muse
, 2009-NMCA-003, 145 N.M. 451, 200 P.3d 104.
Constitutionality.
— The postjudgment execution statutes are unconstitutional as not providing adequate notice of allowable exemptions and the right to a hearing.
Aacen v. San Juan Cnty. Sheriff's Dep't
, 944 F.2d 691 (10th Cir. 1991).
Purpose of exemption statutes.
— The exemption statutes were designed to protect debtors from becoming destitute as a consequence of unforseeable indebtedness, but it was never suggested that such statutes be construed to deprive an individual of his rights of ownership in the exempt property. If the law permits a person to sell his exempt property, surely it permits the less drastic step of encumbering it.
Hernandez v. S.I.C. Fin. Co.
, 1968-NMSC-192, 79 N.M. 673, 448 P.2d 474.
Section construed.
— This section, which applies to debtors who support others, includes married persons or heads of household, even if the individual married debtor stays at home and does not earn any income, and even if the individual single debtor who has a dependent earns insufficient income to pay for the household expenses.
In re Bushey
, 559 B.R. 766 (Bankr. D. N.M. 2016).
Full or complete support is not required.
— Where debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code (11 U.S.C.), and where creditors asserted debtor could not claim exemptions under this section because he was not married to his live-in girlfriend who paid for the majority of the household expenses, debtor was not entitled to claim exemptions under this section because his contributions to the household expenses was less than one-half of the couple's total household expenses and he therefore did not support another person. There is, however, no language in this statute that requires full or complete support as a condition to being able to claim the exemption.
In re Bushey
, 559 B.R. 766 (Bankr. D. N.M. 2016).
Support of debtor's family, intent of section.
— Laws 1887, ch. 73, this section prior to amendment, was not intended to encourage extravagance and the evasion of just debts, but for the necessary support of the debtor's family and himself.
N.M. Nat'l Bank v. Brooks
, 1897-NMSC-015, 9 N.M. 113, 49 P. 947 (decided under former law).
Exemption may be claimed out of wages
which have been garnished in lieu of a homestead.
McFadden v. Murray
, 1927-NMSC-039, 32 N.M. 361, 257 P. 999 (decided under former law).
Amendment of schedules of exempt property.
— Debtors may amend their schedules listing exempt property at any time prior to the closing of a bankruptcy case, subject to objections filed by any party adversely affected by the amendment.
In re Vest
, 18 Bankr. 241 (Bankr. D.N.M. 1982).
Property interest in exempt property.
— By creating exemptions from execution, New Mexico granted judgment debtors a property interest in retaining their exempt property, which is entitled to due process protection.
Aacen v. San Juan Cnty. Sheriff's Dep't
, 944 F.2d 691 (10th Cir. 1991).
No right of setoff.
— A bank may not exercise its right of setoff against debtors' funds that constitute exempt property under former 11 U.S.C. § 522 and this section.
In re Wilde
, 85 Bankr. 147 (Bankr. D.N.M. 1988).
Exemptions not available for child support liens.
— Statutory exemptions for debtors in foreclosure actions set forth in this article are unavailable to a parent as against a lien for child support obligations under 40-4-15 NMSA 1978.
D'Avignon v. Graham
, 1991-NMCA-125, 113 N.M. 129, 823 P.2d 929.
No exemption for tools of a spouse's trade.
— This section does not include language that would permit a debtor to claim a tools of the trade exemption for tools of a spouse's trade.
In re Bryan
, 126 Bankr. 108 (Bankr. D.N.M. 1991).
Doctor's spouse was not allowed an exemption for medical equipment as tools of the trade where she was not engaged in the trade of medicine.
In re Bryan
, 126 Bankr. 108 (Bankr. D.N.M. 1991).
Stacking motor vehicle exemptions.
— The plain language of this section permits each debtor to exempt $4,000.00 worth of equity in a single motor vehicle. The only apparent limiting language, other than the maximum $4,000.00 exemption, is that a debtor is precluded from exempting equity in more than one car. Nothing in the statute prevents debtors from stacking their motor vehicle exemptions in the same vehicle.
Jones v. Boyd
, 134 Bankr. 431 (D.N.M. 1991).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
For note, "Debtor Exemptions in New Mexico," see 6 Nat. Resources J. 467 (1966).
For article, "The Perils of Intestate Succession in New Mexico and Related Will Problems," see 7 Nat. Resources J. 555 (1967).
For comment, "A Comparison of State and Federal Exemptions: 11 U.S.C. § 101-1330 (Supp. II 1978)," see 10 N.M.L. Rev. 431 (1980).
For article, "Survey of New Mexico Law, 1979-80: Commercial Law," see 11 N.M.L. Rev. 69 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
31 Am. Jur. 2d Exemptions §§ 2, 8, 16 to 18, 64 to 137, 144 to 171, 263 to 275.
Retainer by personal representative of indebtedness of heir, legatee or distributee as affected by right to exemption, 1 A.L.R. 1030, 30 A.L.R. 775, 75 A.L.R. 878, 110 A.L.R. 1384, 164 A.L.R. 717.
"Tools," "implements," "instruments," "utensils," or "apparatus," within the meaning of Debtor's Exemption Laws, 2 A.L.R. 818, 9 A.L.R. 1020, 36 A.L.R. 669, 52 A.L.R. 826.
Individual partner's right to exemption in partnership property, 4 A.L.R. 300.
Effect of exemptions as against fines, penalties, and costs, 10 A.L.R. 770.
Exemptions from attachment or execution of property brought by nonresident witness or litigant who comes into state in connection with the litigation, 13 A.L.R. 368.
Landlord's distress for rent, implements of trade as privileged from, 62 A.L.R. 1118.
Waiver, estoppel, loss, or destruction of exemption, 63 A.L.R. 1295.
Deposit of exempt funds as affecting debtor's exemption, 67 A.L.R. 1203.
Voluntary disposition of part of the larger sum, or some of the articles of the exempted class, as affecting debtor's limited exemption, 81 A.L.R. 922.
Laches or delay as waiver of, or estoppel to assert, debtor's exemption, 82 A.L.R. 648.
Marriage of debtor after levy or service of process to reach property as entitling him to exemption enjoyed by married debtor, 82 A.L.R. 739.
Landlord's lien for rent, exemption of tools and implements as against, 96 A.L.R. 256.
Judgment for costs, as one for "debt" within exemption law, 108 A.L.R. 1042.
Debtor's exemption of personalty as attaching to proceeds of sale or exchange thereof, 119 A.L.R. 467.
Set-off as between judgments, as affected by exemption laws, 121 A.L.R. 501.
Motor vehicle as exempt from seizure for debt, 37 A.L.R.2d 714.
Value of room and board furnished to servant as included in total salary or earnings for purpose of statute exempting wages, 51 A.L.R.2d 947.
Enforcement of claim for alimony or support, or for attorneys' fees and costs incurred in connection therewith, against exemptions, 54 A.L.R.2d 1422.
Validity of contractual stipulation or provision waiving debtor's exemption, 94 A.L.R.2d 967.
What is "necessary" furniture entitled to exemption from seizure for debt, 41 A.L.R.3d 607.
Employee retirement, pension benefits as exempt from garnishment, attachment, levy, execution or similar proceedings, 93 A.L.R.3d 711.
Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.
Choice of law as to exemption of property from execution, 100 A.L.R.3d 1235.
Debts for alimony, maintenance, and support as exceptions to bankruptcy discharge, under § 523(a)(5) of Bankruptcy Code of 1978 (11 USCS § 523(a)(5)), 69 A.L.R. Fed. 403.
Individual retirement accounts as exempt property in bankruptcy, 133 A.L.R. Fed. 1
35 C.J.S. Exemptions §§ 31, 46, 52, 54, 63 to 65.