{8} We review the question of which statute of limitations applies de novo because the determination requires statutory interpretation. See Salopek v. Hoffman, 2005-NMCA-016, ¶ 4, 137 N.M. 47, 107 P.3d 1. In looking at whether Subpart (A)(1) of Section 37-1-30 applies to Plaintiff's action, we look first for legislative intent.

"Common law [contractual] waiver is an `intentional relinquishment or abandonment of a known right.'" In re Salopek, 107 P.3d 1, 3 (2004) (quoting J.R. Hale Contracting Co. v. United N.M. Bank, 799 P.2d 581, 585 (1990)). Waiver of employment discrimination claims must be knowing and voluntary. Torrez v. Public Service Co. of New Mexico, Inc., 908 F.2d 687, 689 (10th Cir. 1990).

Here, the only action on the part of Prestige is its pursuit of an order granting its motion for relief. See also, State v. Padilla, 132 N.M. 247, 254, 46 P.3d 1247, 1254 (2002) (stating that "`[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege' which must be made in a knowing and voluntary manner.") (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); In re Salopek, 137 N.M. 47, 49, 107 P.3d 1, 4 (Ct.App. 2004) ("Common law waiver is an `intentional relinquishment or abandonment of a known right.'") (quoting J.R.Hale Contracting Co. v. United N.M. Bank, 110 N.M. 712, 716, 799 P.2d 581, 585 (1990)). "In some contexts, mere failure to assert a statutory right is enough to effect a waiver."

See In re Estate of Jewell, 2001-NMCA-008, ¶ 9. This entitlement applies "even if it means recovery must be made from a decedent's sole and separate property." In re Estate of Salopek, 2005-NMCA-016, ¶ 10, 137 N.M. 47, 107 P.3d 1. Under the New Mexico Uniform Probate Code, if the allowances have been claimed, the Legislature "supplanted the flexibility of discretionary relief in favor of the certainty of a fixed allowance which is afforded without conditions, in a set amount, and apparently without regard for the size or composition of the estate."

In re Estate of Salopek, 2005-NMCA-016, ¶ 10, 137 N.M. 47, 107 P.3d 1. Under the New Mexico Uniform Probate Code, if the allowances have been claimed, the Legislature "supplanted the flexibility of discretionary relief in favor of the certainty of a fixed allowance which is afforded without conditions, in a set amount, and apparently without regard for the size or composition of the estate."

"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."

The cases cited by Duran hold only that a surviving spouse is entitled to the family and personal property allowance notwithstanding the testator's intent. See Conley v. Quinn, 66 N.M. 242, 252, 346 P.2d 1030, 1036 (1959) (holding that, under the prior version of the Probate Code's property allowance provision, a surviving spouse had an unqualified right to the property); Bell v. Estate of Bell, 2008–NMCA–045, ¶ 35, 143 N.M. 716, 181 P.3d 708 (holding that “transfers outside of a will cannot offset or preclude the statutory allowances set forth in Sections 45–2–402 and –403”); Salopek v. Hoffman, 2005–NMCA–016, ¶ 10, 137 N.M. 47, 107 P.3d 1 (reaffirming that “the family allowance and personal property allowance are not subject to offset or defenses and pass outside the will by operation of law”); Estate of Jewell, 2001–NMCA–008, ¶¶ 5, 9, 130 N.M. 93, 18 P.3d 334 (stating that the Probate Code provides statutory allowances to a surviving spouse on a priority basis exempt from creditors of the estate and that these allowances pass outside the will by operation of law). As we have noted, these cases stand only for the proposition that these allowances “constitute a statutory entitlement for the benefit of surviving spouses.”

The cases cited by Duran hold only that a surviving spouse is entitled to the family and personal property allowance notwithstanding the testator's intent. See Conley v. Quinn, 66 N.M. 242, 252, 346 P.2d 1030, 1036 (1959) (holding that, under the prior version of the Probate Code's property allowance provision, a surviving spouse had an unqualified right to the property); Bell v. Estate of Bell, 2008-NMCA-045, ¶ 35, 143 N.M. 716, 181 P.3d 708 (holding that "transfers outside of a will cannot offset or preclude the statutory allowances set forth in Sections 45-2-402 and -403"); Salopek v. Hoffman, 2005-NMCA-016, ¶ 10, 137 N.M. 47, 107 P.3d 1 (reaffirming that "the family allowance and personal property allowance are not subject to offset or defenses and pass outside the will by operation of law"); Estate of Jewell, 2001-NMCA-008, ¶¶ 5, 9 (stating that the Probate Code provides statutory allowances to a surviving spouse on a priority basis exempt from creditors of the estate and that these allowances pass outside the will by operation of law). As we have noted, these cases stand only for the proposition that these allowances "constitute a statutory entitlement for the benefit of surviving spouses."