{ "id": 4248768, "name": "Dustin OLDHAM, Petitioner-Respondent, v. Glenda OLDHAM, Respondent-Petitioner", "name_abbreviation": "Oldham v. Oldham", "decision_date": "2011-02-04", "docket_number": "No. 32,001", "first_page": "215", "last_page": "225", "citations": [ { "type": "official", "cite": "149 N.M. 215" }, { "type": "parallel", "cite": "247 P.3d 736" }, { "type": "parallel", "cite": "2011-NMSC-007" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "120 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558871 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "concluding that the Legislature did not intend for the governor to be a \"public agency\" within the meaning of a statute where the statute specifically listed the entities that qualified as a public agency but did not list the governor" }, { "parenthetical": "concluding that the Legislature did not intend for the governor to be a \"public agency\" within the meaning of a statute where the statute specifically listed the entities that qualified as a public agency but did not list the governor" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0562-01" ] }, { "cite": "939 A.2d 969", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8304562 ], "pin_cites": [ { "page": "972-73" } ], "opinion_index": 0, "case_paths": [ "/a2d/939/0969-01" ] }, { "cite": "181 U.S. 175", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8297476 ], "weight": 3, "year": 1901, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/us/181/0175-01" ] }, { "cite": "100 N.M. 403", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588612 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "404", "parenthetical": "\"[N]o power can dissolve a marriage which has already been dissolved by act of God.\" (quoting Bell v. Bell, 181 U.S. 175, 178, 21 S.Ct. 551, 45 L.Ed. 804 (1901))" }, { "page": "652", "parenthetical": "\"[N]o power can dissolve a marriage which has already been dissolved by act of God.\" (quoting Bell v. Bell, 181 U.S. 175, 178, 21 S.Ct. 551, 45 L.Ed. 804 (1901))" }, { "page": "404" }, { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0403-01" ] }, { "cite": "99 N.M. 809", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584671 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "813" }, { "page": "1011" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0809-01" ] }, { "cite": "117 N.M. 508", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552724 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "513" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0508-01" ] }, { "cite": "1999-NMCA-093", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257786 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0650-01" ] }, { "cite": "2010-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247821 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 13" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0127-01" ] }, { "cite": "74 N.M. 69", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797176 ], "weight": 6, "year": 1964, "pin_cites": [ { "page": "71", "parenthetical": "\"[W]here the subject of revocation is regulated by statute a will may be revoked only in the manner described by the statute.\"" }, { "page": "658", "parenthetical": "\"[W]here the subject of revocation is regulated by statute a will may be revoked only in the manner described by the statute.\"" }, { "page": "71" }, { "page": "658-59" }, { "page": "71-72" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0069-01" ] }, { "cite": "2008-NMSC-064", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242291 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6\u00b6 29-30" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0286-01" ] }, { "cite": "2009-NMCA-043", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244431 ], "weight": 21, "pin_cites": [ { "page": "\u00b6\u00b6 5-7" }, { "page": "\u00b6\u00b6 1, 10" }, { "page": "\u00b6 9" }, { "page": "\u00b6 10" }, { "page": "\u00b6 10" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0188-01" ] }, { "cite": "115 N.M. 573", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725487 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "575-76", "parenthetical": "citations omitted" }, { "page": "564-65", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0573-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "2009-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243054 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0024-01" ] }, { "cite": "2009-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245434 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0182-01" ] }, { "cite": "2009-NMCA-126", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4246480 ], "weight": 12, "pin_cites": [ { "page": "\u00b6\u00b6 11-13" }, { "page": "\u00b6 2" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0329-01" ] } ], "analysis": { "cardinality": 1172, "char_count": 35391, "ocr_confidence": 0.662, "pagerank": { "raw": 1.6132063637784363e-07, "percentile": 0.68594713436961 }, "sha256": "743bfa4f093aed48754557384ea57206a1c16e27830c62c349d425d0d3c2e271", "simhash": "1:f306fd95e50642a4", "word_count": 5641 }, "last_updated": "2023-07-14T18:48:34.747020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and EDWARD L. CH\u00c1VEZ, Justices." ], "parties": [ "Dustin OLDHAM, Petitioner-Respondent, v. Glenda OLDHAM, Respondent-Petitioner." ], "opinions": [ { "text": "OPINION\nDANIELS, Chief Justice.\n{1} This case requires us to interpret and harmonize potentially conflicting provisions within our domestic relations, probate, and trust statutes to determine the process through which a decedent\u2019s estate is defined and distributed when one party to a pending divorce proceeding dies before a final divorce decree is entered. Under these circumstances, a provision within New Mexico\u2019s domestic relations code, NMSA 1978, Section 40-4-20(B) (1993), requires the domestic relations court to continue the proceedings in order to determine marital property rights and debts, spousal and child support, and paternity \u201cas if both parties had survived.\u201d We are asked to determine whether a marital property judgment entered under Section 40-4-20(B) can statutorily revoke a decedent\u2019s will or trust. We hold as a matter of law that the decedent\u2019s will and trust are not statutorily revoked by the entry of a Section 40-4-20(B) marital property judgment. We also hold that, before the domestic relations proceedings can be continued, a personal representative who is not disqualified by a conflict of interest must be appointed to represent the decedent\u2019s estate through the conclusion of those proceedings. After the domestic relations court concludes the Section 40-4-20(B) proceedings, the decedent\u2019s estate can be distributed according to the decedent\u2019s estate plan and our governing probate statutes.\nI. FACTUAL BACKGROUND\n{2} The relevant facts are undisputed. David Oldham (Husband) died on May 7, 2007, nearly four years after being diagnosed with brain cancer. At the time of his death, Husband was married to Glenda Oldham, and the married couple had one adult child, Dustin Oldham (Son).\n{3} On March 29, 2004, Husband and Wife jointly executed the David M. Oldham and Glenda Oldham Revocable Trust Agreement (Trust), naming themselves as co-trustees. Under the terms of the Trust, \u201c[e]ach Settlor individually reserve[d] the right and power ... without the consent of any other person ... to revoke or terminate [the Trust] as it affects his or her separate and community property by a duly executed instrument ... signed by such Settlor ... and delivered to the Trustee (if other than such Settlor).\u201d Although Husband and Wife each reserved the right to revoke his or her share of the Trust during his or her lifetime, the Trust provided that, \u201c[u]pon the death of the first Settlor,\u201d that Settlor\u2019s share of the Trust property \u201cshall be irrevocable.\u201d\n{4} On the same day Husband and Wife executed the Trust, Husband executed the Last Will and Testament of David M. Old-ham (Will). The Will nominated Wife as Husband\u2019s personal representative and gave Husband\u2019s entire estate, with the exception of his tangible personal property, \u201cto be administered as part of [the] Trust.\u201d The parties agree that both the Will and the Trust were validly executed and that neither was amended nor revoked prior to Husband\u2019s death.\nII. PROCEDURAL HISTORY\n{5} In February 2007, a divorce petition was filed on Husband\u2019s behalf in the Second Judicial District Court of New Mexico. Wife filed a timely motion to dismiss the petition, alleging that Husband was not competent to file for divorce and that he was coerced to do so by relatives. Whether Husband was competent when he filed for divorce remains a contested issue, and no final divorce decree has been entered. The domestic relations proceedings are not before this Court and have been stayed pending this appeal.\n{6} After Husband\u2019s death, Son filed an application in the probate court for informal appointment as personal representative of Husband\u2019s estate. Son\u2019s position is that, under New Mexico law, a property division judgment entered pursuant to Section 40-4-20(B) will revoke Husband\u2019s Will and Husband\u2019s share of the Trust, rendering Husband intestate. Wife filed a counter-application for formal appointment to serve as personal representative of Husband\u2019s estate in the Second Judicial District Court, arguing that she has priority to serve because Husband nominated her in the Will. Wife then moved for partial summary judgment, seeking (1) appointment as personal representative of Husband\u2019s estate, (2) affirmation that the Will and Trust were valid, and (3) admission of the Will to probate. Son filed a countermotion for summary judgment seeking appointment as personal representative and invalidation of the Will and Trust.\n{7} The district court concluded as a matter of law that \u201c[o]nly a final decree of divorce, and not the mere filing and service of a divorce petition, is sufficient to revoke a governing instrument, including the Will and Trust.\u201d The court therefore granted Wife\u2019s motion for partial summary judgment. The court\u2019s final order declared the Will and Trust to be unrevoked and fully enforceable, admitted Husband\u2019s Will to probate, and appointed Wife as the personal representative of Husband\u2019s estate.\n{8} Son appealed the district court\u2019s decision to the Court of Appeals. Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701. The Court of Appeals reversed the district court on the issue of Wife\u2019s appointment as personal representative due to the conflict that would be present if Wife represented Husband\u2019s estate against herself in the domestic relations proceedings. Id. If 2. The Court of Appeals also reversed the summary judgment determination that the Will and Trust were unrevoked and remanded for further proceedings on both issues. Id.\n{9} We granted Wife\u2019s petition for certiorari to address two issues: (1) whether a final judgment distributing marital property pursuant to Section 40-4-20(B) revokes the governing estate planning instruments of the deceased party when the deceased party dies during the pendency of the divorce proceedings, and (2) whether an inherent conflict of interest disqualifies Wife from serving as the personal representative of Husband\u2019s estate. We hold that the entry of a Section 40-4-20(B) marital property judgment cannot statutorily revoke a decedent\u2019s estate planning instruments. We also hold that Wife is disqualified by a conflict of interest from serving as the personal representative of Husband\u2019s estate during the remainder of the domestic relations proceedings.\nIII. DISCUSSION\nA. Standard of Review\n{10} This is a case of statutory interpretation. \u201cStatutory construction is a matter of law we review de novo.\u201d State v. Nick B., 2009-NMSC-050, \u00b6 11, 147 N.M. 182, 218 P.3d 868. \u201cIn construing a statute, our charge is to determine and give effect to the Legislature\u2019s intent. In discerning the Legislature\u2019s intent, we are aided by classic canons of statutory construction, and [w]e look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.\u201d Marbob Energy Corp. v. N.M. Oil Conservation Comm\u2019n, 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135 (alteration in original) (internal quotation marks and citation omitted). \u201cWe must take care to avoid adoption of a construction that would render the statute\u2019s application absurd or unreasonable or lead to injustice or contradiction.\u201d Nick R., 2009-NMSC-050, \u00b6 11, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation omitted).\n{11} To resolve this case we must read Section 4(M-20(B) together with the Uniform Probate Code (UPC), NMSA 1978, Sections 45-1-101 to -9A-13 (1975, as amended through 2009), and the Uniform Trust Code (UTC), NMSA 1978, Sections 46A-1-101 to -11-1105 (2003, as amended through 2009). \u201c[A] statutory subsection may not be considered in a vacuum, but must be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter.\u201d State v. Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (alteration in original) (internal quotation marks and citation omitted). \u201c[Statutes covering the same subject matter should be harmonized and construed together when possible in a way that facilitates then\u2019 operation and the achievement of their goals.\u201d State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575-76, 855 P.2d 562, 564-65 (1993) (citations omitted).\nB. A Marital Property Judgment Entered Pursuant to Section 40-4-20(B) Cannot Statutorily Revoke a Will or a Trust.\n1. Section I0-I-20(B) Provides That Property Division Issues Must Still Be Addressed After the Death of a Party to a Divorce Action.\n{12} At issue in this case is the application of Section 40-4-20(B) of our domestic relations code, which directly addresses the division of marital property in cases where one party to a pending divorce action dies. Section 40-4-20(B) provides in relevant part that, upon the filing and service of a petition for divorce,\nif a party to the action dies during the pendency of the action, but prior to the entry of a decree granting dissolution of marriage, ... the proceedings for the determination, division and distribution of marital property rights and debts, distribution of spousal or child support or determination of paternity shall not abate. The court shall conclude the proceedings as if both parties had survived.\n{13} By enacting Section 4(M-20(B), the Legislature departed from the common law rule that a pending divorce action abates when a party to the action dies before the entry of a final divorce decree. See Karpien v. Karpien, 2009-NMCA-043, \u00b6\u00b6 5-7, 146 N.M. 188, 207 P.3d 1165 (discussing the history and language of Section 40-4-20(B)).\n{14} Section 40-4-20(B) applies in this case and requires the domestic relations court to finish dividing Husband\u2019s and Wife\u2019s marital property rights and debts. In light of Section 40-4-20(B)\u2019s mandate, we first address the issue of whether a Section 40-4-20(B) property judgment can revoke Husband\u2019s Will and Trust. Son contends that Husband\u2019s Will and Trust can be revoked posthumously through the application of Section 40-4-20(B) in conjunction with the UPC. The Court of Appeals agreed. Oldham, 2009-NMCA-126, \u00b6\u00b6 11-13, 147 N.M. 329, 222 P.3d 701. We conclude that a different outcome is required by the plain language of the UPC, this Court\u2019s precedent, and the strict statutory formalities required to validly revoke wills and trusts in New Mexico. We hold that a marital property judgment entered under Section 40-4-20(B) cannot revoke a decedent\u2019s governing estate planning instruments.\n2. Wills and Trusts Can Be Revoked Only Through Strict Compliance with the Statutory Formalities Established By New Mexico Law.\n{15} Revocation of wills and trusts is governed by mandatory statutes. We must hon- or legislative intent that wills and trusts be revoked in strict accordance with the statutory methods and formalities established by the UPC and UTC. See Gushwa v. Hunt (In re Estate of Gushwa), 2008-NMSC-064, \u00b6 15, 145 N.M. 286, 197 P.3d 1 (explaining that the legislature has intentionally and specifically limited the available means of revocation); see also Albuquerque Nat\u2019l Bank v. Johnson, 74 N.M. 69, 71, 390 P.2d 657, 658 (1964) (\u201c[W]here the subject of revocation is regulated by statute a will may be revoked only in the manner described by the statute.\u201d). When construing the UPC and UTC provisions governing revocation, we take an approach that promotes the statutes\u2019 underlying purposes and policies. See \u00a7\u00a7 45-1-102(A), 46A-1-112. A primary purpose of 'both the UPC and the UTC is \u201cto discover and make effective the intent of a decedent in distribution of his property.\u201d Section 45-1 \u2014 102(B)(2); see also Cable v. Wells Fargo Bank N.M., N.A. (In re Cable Family Trust), 2010-NMSC-017, \u00b6 12, 148 N.M. 127, 231 P.3d 108 (explaining that the UTC regards the terms of the trust as the manifestation of the settlor\u2019s intent).\n{16} At early common law, before the advent of statutes governing the revocation of wills, attempts to defeat valid wills were common. 2 Page on the Law of Wills \u00a7 21.3, at 352 (2003) (\u201cThe recognition of informal revocation by oral declarations ... natural[ly] resulted] in bold attempts to defeat wills by fabricating evidence of the declarations of [the] testator.\u201d). These abuses led to the enactment of revocation statutes in England and, subsequently, most states, including New Mexico. Albuquerque Nat\u2019l Bank, 74 N.M. at 71, 390 P.2d at 658-59. Requiring strict adherence to the formalities established by revocation statutes protects decedents, who are unavailable to defend their estate plans against fraud. See Gushwa, 2008-NMSC-064, \u00b6\u00b6 29-30, 145 N.M. 286, 197 P.3d 1.\n{17} The UPC provides the exclusive means by which a will can be revoked. See Sanchez v. Martinez (In re Estate of Jose C. Martinez), 1999-NMCA-093, \u00b6 9, 127 N.M. 650, 985 P.2d 1230. \u201cThe power of a testator to revoke is of equal stature and importance as the power to make a will in the first place, and one of the inherent characteristics of a will is its revocability.\u201d 2 Page on the Law of Wills, supra, \u00a7 21.1, at 345-46. A testator can revoke a will or any part thereof \u201cby executing a subsequent will.\u201d Section 45-2-507(A)(1). A will can also be revoked by \u201cperforming a revocatory act on the will,\u201d including \u201cburning, tearing, canceling, obliterating or destroying the will or any part of it\u201d with the intent to revoke the will. Section 45-2-507(A)(2). In this case, it is undisputed that Husband neither executed a subsequent will nor performed a revocatory act on his existing Will.\n{18} Trust revocation is governed by the UTC. The terms of the trust instrument determine whether a trust is revocable. See \u00a7 46A-6-602. A settlor can revoke or amend a revocable trust by complying with a method of revocation \u201cprovided in the terms of the trust.\u201d Section 46A-6-602(C)(l). Additionally, if a trust does not expressly establish the exclusive means by which it can be revoked, the settlor can revoke that trust by executing \u201ca later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust,\u201d or by \u201cany other method manifesting clear and convincing evidence of the settlor\u2019s intent.\u201d Section 46A-6-602(C)(2). The Trust in this case provided a method of revocation. Husband and Wife each reserved the power to revoke their shares of the Trust by simply signing a \u201cduly executed instrument\u201d and delivering that instrument to the trustee. Husband did not execute either an instrument revoking the Trust, pursuant to the language of the Trust, or a later will that would have revoked the Trust, pursuant to Section 46A-6-602(C)(2)(a).\n{19} Son argues that Husband\u2019s filing and service of a divorce petition \u201cconstitutes clear and convincing evidence of his intent to revoke his trust\u201d and that the Trust was therefore revoked pursuant to Section 46A-6-602(C)(2)(b). It is doubtful that the mere filing and service of a divorce petition could constitute \u201cclear and convincing evidence\u201d of a settlor\u2019s intent to revoke a trust. Less formal methods of trust revocation are usually insufficient means to revoke a trust, \u201cbecause they provide less reliable indicia of intent\u201d than those methods outlined in either the terms of the trust or in the statutory language of the UTC. See Unif. Trust Code \u00a7 602 cmt. (amended 2003), 7C U.L.A 549 (2006).\n{20} We need not reach this issue, however, because it was not preserved below. Son does not indicate in his brief, and in our review of the record we have not located, where Son argued to the district court that filing and service of a divorce petition was clear and convincing evidence of Husband\u2019s intent to revoke the Trust. Son neither established that he preserved this argument nor presented any legal authority supporting his claim. \u201c[T]his Court will not review issues raised in appellate briefs that are unsupported by cited authority.\u201d State v. Clifford, 117 N.M. 508, 513, 873 P.2d 254, 259 (1994). \u201cMere reference in a conclusory statement will not suffice and is in violation of our rules of appellate procedure.\u201d Id.; see Rule 12-213(A)(4) NMRA (providing that briefs \u201cshall contain ... a statement explaining how the issue was preserved in the court below, with citations to authorities, record proper, transcript of proceedings or exhibits relied on\u201d). Accordingly, we decline to review whether Husband\u2019s filing of a divorce petition manifested clear and convincing evidence of his intent to revoke the Trust in satisfaction of Section 46A-6-602(C)(2)(b).\n8. Section J/.5-2-8CH Cannot Statutorily Revoke Husband\u2019s Will or Trust.\n{21} Son argues in the alternative that a marital property judgment entered under Section 40-4-20(B) will act to revoke Husband\u2019s Will and Trust posthumously. Son relies on Section 45-2-804 of the UPC, which provides for \u201cRevocation of probate and nonprobate transfers by divorce.\u201d Under Section 45-2-804(B)(l), the \u201cdivorce or annulment of a marriage ... revokes any revocable ... disposition or appointment of property\u201d to the decedent\u2019s former spouse made in a \u201cgoverning instrument,\u201d such as a will or a trust, and revokes as well the decedent\u2019s nomination of the \u201cformer spouse to serve in any fiduciary or representative capacity,\u201d such as personal representative or trustee. See \u00a7 45-l-201(A)(17) (defining \u201cgoverning instrument\u201d to include wills and trusts). We disagree with Son\u2019s proposed interpretation of Section 45-2-804 for several reasons.\n{22} First, we conclude that Section 45-2-804 is not applicable in this case because it provides a statutory mechanism for the revocation of revocable governing instruments, and Husband\u2019s Will and Trust both became irrevocable when he died. \u201cFrom the time of execution, a will is inherently revocable throughout the testator\u2019s remaining lifetime.\u201d Restatement (Third) of Prop.: Wills & Other Donative Transfers \u00a7 4.1 cmt. a (1999). When the testator dies, the will becomes irrevocable. See Martinez v. Martinez (In re Estate of Miguel Martinez), 99 N.M. 809, 813, 664 P.2d 1007, 1011 (Ct.App. 1983). Husband\u2019s Will became effective and irrevocable upon his death.\n{23} Husband\u2019s share of the Trust property is also irrevocable. Whether or not a trust is revocable depends on the terms of the trust. Section 46A-6-602. The Trust in this ease provided that, upon the death of the first settlor, that settlor\u2019s share of the Trust would become irrevocable. Husband\u2019s share of the Trust property became irrevocable upon his death in accordance with his intent as expressed by the terms of the Trust. See Cable, 2010-NMSC-017, \u00b6 13, 148 N.M. 127, 231 P.3d 108 (explaining that the plain language of a trust is \u201cthe primary evidence of grantor intent\u201d). Neither the Will nor the Trust can be revoked through the \u201cby divorce\u201d provisions of Section 45-2-804.\n{24} Applying Section 45-2-804 (revocation by divorce or annulment) to revoke governing instruments after the entry of a Section 40-4-20(B) marital property judgment would improperly give the domestic relations court jurisdiction to grant the equivalent of a posthumous divorce. The general rule in New Mexico and virtually every other jurisdiction is that a pending divorce action becomes moot when one party to the action dies. See Romine v. Romine, 100 N.M. 403, 404, 671 P.2d 651, 652 (1983) (\u201c[N]o power can dissolve a marriage which has already been dissolved by act of God.\u201d (quoting Bell v. Bell, 181 U.S. 175, 178, 21 S.Ct. 551, 45 L.Ed. 804 (1901))); see also 24 Am. Jur. 2d Divorce & Separation \u00a7 118 (2008) (noting that judicial power ends when a party dies before the entry of the divorce decree). In Romine, this Court explained that one spouse\u2019s death during the pendency of a divorce action deprives the court of jurisdiction to enter a final divorce decree. 100 N.M. at 404, 671 P.2d at 652.\n{25} In 1993, the Legislature enacted Section 40-4-20(B), expressly providing the domestic relations court jurisdiction to conclude three specific tasks if a party to a divorce dies during its pendency: \u201cdivision and distribution of marital property rights and debts, distribution of spousal or child support[, and] determination of paternity.\u201d Notably, Section 40-4-20(B) omits \u201cdivorce\u201d from the list of ancillary domestic relations proceedings that must be continued and concluded after the death of one party to a pending divorce action. Nothing in Section 40-4-20(B) gives the court jurisdiction to enter a posthumous divorce decree. Cf. Taper v. Taper, 939 A.2d 969, 972-73 (Pa.Super.Ct.2007) (holding that a Pennsylvania domestic relations statute providing for posthumous property division did not provide the court with jurisdiction to enter a posthumous divorce). The Legislature did not intend for Section 40-4-20(B) to reverse the longstanding rule that death terminates the marital relationship.\n{26} Son argues that a Section 40-4-20(B) marital property judgment meets the definition of \u201cdivorce or annulment\u201d in Section 45-2-804 (providing for revocation by divorce or annulment), and that the entry of a Section 40-4-20(B) marital property judgment therefore will statutorily revoke Husband\u2019s Will and Trust.\n{27} Son construes the statutes as follows. Section 45-2-804(A)(2) defines \u201cdivorce or annulment\u201d as \u201cany divorce or annulment or any dissolution or declaration of invalidity of a marriage that would exclude the spouse as a surviving spouse within the meaning of Section 45-2-802.\u201d Section 45-2-802 is a definitional statute that explains the meaning of the phrase, \u201csurviving spouse,\u201d as used in numerous other UPC provisions. Section 45-2-802(B)(3) excludes as a surviving spouse \u201can individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property-rights, including a property division judgment entered pursuant to the provisions of Section 40-4-20[B].\u201d Under Son\u2019s construction of the statutes, if a marital property judgment is entered in this case pursuant to Section 40-4-20(B), Wife will not be a surviving spouse under Section 45 \u2014 2\u2014802(B)(3), and therefore the marriage will result in a \u201cdivorce or annulment\u201d under Section 45-2-804, which will statutorily revoke Husband\u2019s governing instruments.\n{28} Son\u2019s reading of Section 45-2-802 (defining \u201csurviving spouse\u201d) misapplies that provision. Subsection B, upon which Son relies, provides a definition of \u201csurviving spouse\u201d that applies only \u201c[f]or purposes of Chapter 45, Article 2, Parts 1 through 4 and Section 45-3-203.\u201d Section 45-2-802(B). The statute governing revocation by divorce or annulment, Section 45-2-802, is found in Chapter 45, Article 2, Part 8, and therefore is not one of the enumerated provisions to which Section 45-2-802(B)\u2019s definition of \u201csurviving spouse\u201d applies. Son\u2019s construction of the statutes is contrary to the plain language of Section 45-2-802(B), which expressly limits its own applicability. See State ex rel. Clark v. Johnson, 120 N.M. 562, 576 n. 6, 904 P.2d 11, 25 n. 6 (1995) (concluding that the Legislature did not intend for the governor to be a \u201cpublic agency\u201d within the meaning of a statute where the statute specifically listed the entities that qualified as a public agency but did not list the governor).\n{29} To support his argument, Son contends that Karpien, 2009-NMCA-043, 146 N.M. 188, 207 P.3d 1165, presented a situation nearly identical to this case. In Karpien, the wife died intestate while she was a party to a pending divorce action. Id. \u00b6\u00b6 1, 3-4. The domestic relations court complied with Section 40-4-20(B)\u2019s mandate by concluding the proceedings for the division of marital property. Karpien, 2009-NMCA-043, \u00b6\u00b6 1, 10, 146 N.M. 188, 207 P.3d 1165. The husband argued before the Court of Appeals that he was \u201centitled to receive all of [his wife\u2019s] community property by intestacy\u201d and that \u201cthe district court should have distributed the marital estate under Section 45-2-102 of the Probate Code.\u201d Id. \u00b6 4; see also \u00a7 45-2-102(B) (intestacy statute). The Court of Appeals disagreed, explaining that the domestic relations court must apply our community property law \u201c \u2018as if both parties had survived\u2019 \u201d when concluding a property division pursuant to Section 40-4-20(B). Karpien, 2009-NMCA-043, \u00b6 9, 146 N.M. 188, 207 P.3d 1165 (quoting \u00a7 40^-20(B)); see also Community Property Act of 1973, NMSA 1978, \u00a7\u00a7 40-3-6 to -17 (1973, as amended through 1997) (defining and classifying community property). The Court of Appeals then explained that the husband was not a \u201csurviving spouse\u201d for purposes of our law governing intestate succession, citing Section 45-2-802(B)(3), which expressly applies to Chapter 45, Article 2, Part 1 (governing intestacy). Karpien, 2009-NMCA-043, \u00b6 10, 146 N.M. 188, 207 P.3d 1165. The Court of Appeals correctly held that the Section 40-4-20(B) marital property judgment precluded husband \u201cfrom being considered a \u2018surviving spouse\u2019 for purposes of\u2019 intestate succession. Karpien, 2009-NMCA-043, \u00b6 10, 146 N.M. 188, 207 P.3d 1165. Karpien illustrates how the controlling effect of Section 40-4~20(B) gives different results depending on whether a party to a pending divorce action dies with or without governing instruments. This case is distinguishable from Karpien because Husband did not die intestate but instead had governing instruments.\n{30} Wills and trusts allow decedents to pass property in accordance with their own \u201cpersonal wishes and tailor-made formula[s]\u201d as expressed during their lifetimes \u201cin accordance with the formalities prescribed by law.\u201d 1 Page on the Law of Wills, supra, \u00a7 1.1, at 1; see also Cable, 2010-NMSC-017, \u00b6 11, 148 N.M. 127, 231 P.3d 108 (\u201c[I]n construing the provisions of wills and trust instruments, the court must attempt to ascertain and give effect to the [grantor\u2019s] intent.\u201d (second alteration in original) (internal quotation marks and citation omitted)). Statutes governing the exclusive means of revocation were enacted to prevent fraud and protect the decedent\u2019s intended estate plan. See Albuquerque Nat\u2019l Bank, 74 N.M. at 71-72, 390 P.2d at 659. Given the statutory formalities that must be complied with to validly revoke a will or trust, we cannot accept Son\u2019s proposed construction of the statutes. We find nothing in our statutory scheme indicating that the Legislature intended for marital property judgments entered pursuant to Section 40-4-20(B) to revoke the decedent\u2019s governing instruments posthumously. Neither divorce nor revocation by divorce is possible after the death of one spouse. We hold that a marital property judgment entered pursuant to Section 40-4-20(B) will not revoke Husband\u2019s Will or Trust.\nC. The Domestic Relations Proceedings Must Be Concluded Pursuant to Section 40-4-20(B) Before Husband\u2019s Estate Can Be Probated.\n{31} We clarify the procedural sequence that must be followed in cases where one party to a pending divorce action dies before the entry of a final divorce decree. Wife argues that the probate proceedings must be completed before the domestic relations court concludes the proceedings for the division of marital property. 'We disagree. In cases where one party to a pending divorce action dies before the divorce is finalized, distributing the decedent\u2019s estate under the decedent\u2019s estate plan and the UPC without first establishing the decedent\u2019s share of the marital property and debts would be unworkable and contrary to legislative intent. We hold that the deceased\u2019s estate must be defined through the entry of a Section 40-M-20(B) marital property judgment before that estate can be distributed in probate.\n{32} Concluding a Section 40-4-20(B) property division is mandatory. Section 40-4-20(B) provides in relevant part that the domestic relations court \u201cshall conclude the proceedings\u201d for \u201cdetermination, division and distribution of marital property rights and debts ... as if both parties had survived.\u201d (Emphasis added.) Section 40-4-20(B)\u2019s use of the word shall indicates that the Legislature intended for the decedent\u2019s estate to be defined by the domestic relations court. See NMSA 1978, \u00a7 12-2A-4 (1997) (\u201c \u2018Shall\u2019 and \u2018must\u2019 express a duty, obligation, requirement or condition precedent.\u201d); Marbob Energy Corp., 2009-NMSC-013, \u00b6 22, 146 N.M. 24, 206 P.3d 135 (explaining that \u201c\u2018shall\u2019 indicates that the provision is mandatory\u201d). Allowing the probate court to distribute the decedent\u2019s estate without first concluding the domestic relations proceedings would contravene Section 40-4-20(B)\u2019s mandate. See Karpien, 2009-NMCA-043, \u00b6 11, 146 N.M. 188, 207 P.3d 1165 (explaining that dividing the wife\u2019s estate using our intestacy laws instead of our community property laws would \u201ceffectively repeal the provisions of Section 40-4-20(B)).\u201d\n{33} Wife argues that the probate proceedings must be concluded before the domestic relations proceedings in order to comply with Section 40-4-20(B)\u2019s child and spousal support provisions. Section 40-4-20(B) provides that, when determining support, \u201cthe court shall ... consider the amount and nature of the property passing from the [decedent] to the person for whom the support would be paid, whether by will or otherwise.\u201d Although we agree with Wife that this provision requires the domestic relations court to consider the decedent\u2019s estate plan before awarding any child or spousal support, it is important to have a procedural sequence that will work in all cases and comply with all governing statutes.\n{34} When a party to a pending divorce action dies before a final divorce decree is entered, the decedent\u2019s estate cannot be immediately distributed in probate because the extent of the property owned by the decedent is unknown. For example, if a party to a pending divorce dies intestate, the domestic relations court must determine the extent of the decedent\u2019s separate property and share of the community property in order to determine what property will pass by intestacy. If a party to a pending divorce dies with a valid will, the domestic relations proceeding must first determine the property over which the decedent can exercise the power of testamentary disposition. If a decedent\u2019s will has a residuary clause or pour-over provision, the domestic relations proceeding must determine what property will pass via that residuary clause or pour-over provision. The domestic relations proceedings must therefore be completed first.\n{35} This holding honors the requirements of governing statutes and provides a workable framework for the definition and distribution of the estates of all persons who die during the pendency of a divorce action in New Mexico. The single procedural sequence we outline effectuates the Legislature\u2019s intent that the Section 40-4-20(B) proceedings be concluded \u201cas if both parties had survived,\u201d and it furthers the purposes and policies of the UPC by simplifying and clarifying estate law and \u201cpromot[ing] a speedy and efficient system\u201d for settling decedents\u2019 estates. Section 45-l-102(B)(l), (3).\nD. Wife Cannot Be Appointed as the Personal Representative of Husband\u2019s Estate Before the Conclusion of the Domestic Relations Proceedings Because of an Inherent Conflict of Interest.\n{36} A personal representative must be appointed to represent the interests of Husband\u2019s estate during the conclusion of the domestic relations proceedings. See Rule 1-025(A)(1) NMRA (\u201cIf a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.\u201d). Wife argues that, unless she is disqualified, her nomination in the Will gives her priority to serve as personal representative. We agree with the Court of Appeals that Wife is disqualified from serving during the conclusion of the proceeding to determine and distribute marital property rights and debts because Wife\u2019s interests are directly adverse to the interests of Husband\u2019s estate. See Oldham, 2009-NMCA-126, \u00b6 2, 147 N.M. 329, 222 P.3d 701.\n{37} Priority among persons seeking appointment as personal representative is governed by Section 45-3-203 as follows:\nA. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:\n(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;\n(2) the surviving spouse of the decedent who is a devisee of the decedent;\n(3) other devisees of the decedent;\n(4) the surviving spouse of the decedent;\n(5) other heirs of the decedent; and\n(6) on application or petition of an interested person other than a spouse, devisee or heir, any qualified person.\nBut the priorities in Section 45-3-203 apply only to \u201cpersons who are not disqualified\u201d from serving. Id. (emphasis added). \u201cDisqualified\u201d individuals include \u201ca person whom the court finds unsuitable in formal proceedings.\u201d Section 45-3-203(F)(2). The district court therefore must determine whether a person nominated by a will to serve as the personal representative of the decedent\u2019s estate is \u201cunsuitable\u201d to serve. Although a decedent\u2019s former spouse may be suitable to serve as the personal representative for the purposes of probating the decedent\u2019s estate, a decedent\u2019s former spouse is not suitable to serve as the personal representative of the decedent\u2019s estate in an adversarial proceeding where the estate of the former spouse is the opposing party.\n{38} Divorce and marital property division proceedings are adversarial by their very nature, making it impossible for one spouse to adequately represent the interests of both parties in the domestic relations proceedings. For example, allowing one party to control both sides of a domestic relations proceeding would enable that party to move, unopposed, to dismiss the proceeding, as Wife seeks to do in this case. Wife argues that a marital property division is not needed in this case because Husband\u2019s entire estate must pass according to his unrevoked Will and Trust. Son contends that Husband owned additional assets at the time of his death that are not covered by the Will or the Trust. By enacting Section 40-4-20(B), the Legislature intended that such disputes be resolved by the domestic relations court. Dismissal would prevent the court from concluding the domestic relations proceeding under the Section 4(M-20(B) mandate. A representative who is unimpaired by a conflict of interest must therefore be appointed to represent Husband\u2019s estate through the conclusion of the domestic relations proceedings.\nIV. CONCLUSION\n{39} We affirm in part and reverse in part the opinion of the Court of Appeals, and we remand to the district court for further proceedings in accordance with this Opinion.\n{40} IT IS SO ORDERED.\nWE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and EDWARD L. CH\u00c1VEZ, Justices.\n. Husband was evaluated on August 28, 2006, and twice thereafter by neuropsychologist Anne E. Kayl, Ph.D., to determine the effects of his disease and treatment on his cognitive function. Dr. Kayl concluded that Husband's intellectual function, memory, language, and other cognitive functions were significantly impaired.", "type": "majority", "author": "DANIELS, Chief Justice." } ], "attorneys": [ "Luebben Johnson & Barnhouse LLP, Karl E. Johnson, Randolph H. Barnhouse, Samuel D. Hough, Albuquerque, NM, for Petitioner.", "Geer, Wissel & Levy P.A., Maria Garcia Geer, Robert D. Levy, Elizabeth Drotning Hartwell, Albuquerque, NM, for Respondent." ], "corrections": "", "head_matter": "2011-NMSC-007\n247 P.3d 736\nDustin OLDHAM, Petitioner-Respondent, v. Glenda OLDHAM, Respondent-Petitioner.\nNo. 32,001.\nSupreme Court of New Mexico.\nFeb. 4, 2011.\nLuebben Johnson & Barnhouse LLP, Karl E. Johnson, Randolph H. Barnhouse, Samuel D. Hough, Albuquerque, NM, for Petitioner.\nGeer, Wissel & Levy P.A., Maria Garcia Geer, Robert D. Levy, Elizabeth Drotning Hartwell, Albuquerque, NM, for Respondent." }, "file_name": "0215-01", "first_page_order": 241, "last_page_order": 251 }