How courts determine next of kin

4 min read

What is next of kin?

  • Next of kin is a legal term that defines the closest relation to your loved one who has passed.

  • Depending on the state you live in and the legal situation you are in, the term can be defined differently.

  • Typically a surviving spouse or child is considered next of kin.

  • If your loved one died without a will, a probate court judge will use state law to determine next of kin, and all other heirs who stand to inherit a part of the estate.

If you’ve been dealing with any aspect of probate of a loved one’s estate, you likely have come across the legal term “next of kin.”

The meaning of “next of kin” seems straightforward: It is the person with the closest relationship to your loved one who has passed. But its legal definition is not always clear.

It can differ from state to state, and even within the same state it can mean different things in different situations.

Knowing which family member is the legal next of kin is especially important if your loved one did not leave a will, since judges sometimes appoint that person as the administrator of the estate. In addition, it is often used in intestate inheritance laws, and a few other steps in probate.

To avoid any confusion, it is a good idea to look into how your state defines next of kin in its probate legislation.

Next of kin and intestate succession

The designation next of kin is most commonly used in intestate succession laws, which govern the order of inheritance when someone dies without a valid will. This is also called dying “intestate.”

In this situation, the court will defer to the state’s intestate succession laws to determine who will administer the estate, and how its assets will be distributed. 

Most often, unless there is some kind of conflict, the judge will choose the “next of kin” to be the administrator of the estate.

While in some situations, next of kin means the closest blood relative—typically children—in intestate succession laws, it could also include family members who are legally related to your loved one, like a spouse. In fact, in most states, these laws dictate that a surviving spouse inherits everything, even if there are children from that marriage. 

Similarly, under the governance of intestate succession laws, an administrator of the estate is determined by the court based on a priority list set out by the state’s legislation.

Every state has its own priority list, but they don’t vary too much. Whether or not the term “next of kin” is used, the first person on that priority list is usually the surviving spouse, and the next priority usually goes to the children. 

Some judges may recognize a person’s registered domestic partner as their next of kin, while others may not.

Under intestate succession law, some judges may recognize a person’s registered domestic partner as their next of kin, while others may not.

When it comes to an unmarried, unregistered partnership, however, the surviving partner will likely not count as next of kin in the eyes of the court.

Put simply, to be considered next of kin when inheritances are being determined, you have to be related by blood, by marriage, or by any other legally sanctioned bond, like adoption. 

Order of inheritance 

Intestate administration differs from state to state, so you should check with your local laws. But the most common order of priority for inheritance is:

  • Spouse or domestic partner

  • Children

  • Parents

  • Siblings

  • Grandchildren

  • Grandparents

  • Aunts and uncles

  • Nieces and nephews

  • Great grandchildren

Intestate administration laws are designed to make sure that a person’s assets don’t end up without an heir, even if they do not have many living family members.

As you go down the list, the first relative who is still alive may be considered next of kin in this situation. For example, according to the list above, if there was no surviving spouse, children, or parents at the time of their death, then, under intestate succession law, their siblings would effectively become their next of kin.

While next of kin can be a confusing term, meaning slightly different things in different scenarios, if you are currently dealing with your loved one’s estate, you can always rely on the court to provide you with the correct information regarding this terminology in your particular state or county.

Also, you can and should consult with a probate lawyer if you have any confusion about the process. It can be complex, but rest assured that in the end, your loved one’s assets will be properly distributed to their rightful heirs.

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