Requirement of survival by one hundred twenty hours;

individual in gestation. A. For purposes of intestate succession and allowances, and except as otherwise provided in Subsection B of this section, the following rules apply: (1) an individual born before a decedent's death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period; and (2) an individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period. B. This section does not apply if its application would cause the estate to pass to the state under Section 45-2-105 NMSA 1978.