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Next of kin is the term used to describe a person's closest living blood relative or relatives.

In many legal systems, rights regarding inheritance serve a decision making capacity (for example, in a medical emergency) where no clear will or instructions have been given, and the person has no spouse, flow to their closest relative (regardless of the age with a representative appointed if a minor), usually a child, a parent or a sibling. However, there are people without any close adult relatives and, in such a case, decision making power often flows to a nephew, first cousin, aunt, uncle, or grandparent.

For example, if a person dies intestate, the laws of most jurisdictions require the estate to be distributed to the person's spouse and/or children. However, if there are none of these, the estate can often be distributed to the next closest group of living relatives, whether they be parents, grandparents, cousins, aunts & uncles, or even second cousins in extreme cases. If a person dies intestate with no identifiable next of kin, the person's estate generally escheats (i.e., legally reverts) to the government.

Similarly, the decisions about funeral arrangements for an unmarried person without children are also made by the next closest relative.

In cases of medical emergency, where a person is incapable (either legally because of age or mental infirmity, or because they are unconscious) of making decisions for themselves and they have no spouse or children, medical decisions can be made by the next of kin in preference to the wishes of medical personnel.

The inability of persons who are not in a legal marriage to make decisions with respect to the care of a live-in partner has resulted in many jurisdictions giving live-in partners rights equivalent to a spouse in such situations, even though most jurisdictions still do not require non-spouses to be made beneficiaries of estates (it is improper in most jurisdictions to disinherit a spouse). The inability of same-sex partners to have rights with respect to a partner's medical care or funeral arrangements over and above those of the next of kin is one of the main reasons behind litigation to require same-sex marriage or its equivalent.

For the purposes of next of kin, adopted children are treated as blood relatives. However, relatives by marriage are never considered next of kin.

The opposite term is a stranger in blood.

Contents

Order of Precedence in the U.S.A.

"American statutes typically provide that, in absence of issue and subject to the share of a surviving spouse, intestate property passes to the parents or to the surviving parent of the decedent."[1] Under the civil law system of computation and its various modified forms that are widely adopted by statute in the United States, "a claimant's degree of kinship is the total of (1) the number of the steps, counting one from each generation, from the decedent up to the nearest common ancestor of the decedent and the claimant, and (2) the number of steps from the common ancestor down to the claimant."[1] "The claimant having the lowest degree count (i.e., the nearest or next of kin) is entitled to the property."[1] "If there are two or more claimants who stand in equal degree of kinship to the decedent, they share per capita."[1]

Thus, the following conditions determine the usual order of precedence:

  • In the absence of issue (i.e., children, grandchildren, and on down the line) and in absence of your parents and their issue and grandparents and of their issue (termed "inner circle" and are usually specifically mentioned in a statute), relatives who are closer in "degree" to the person in question always take precedence. For the purposes of this point, "To determine any person's degree of relation to the decedent, begin with the decedent and follow the line that connects the decedent with the other person. Each person that must be passed through before reaching the final person adds one degree to the total, including the final person." [2]
  • "Of multiple relations with the same degree, those connecting through a nearer ancestor are more closely related to the descendent." [2]

Under these rules, an order of precedence is established. Here are the first few in the order (specifically, those up to degree 6):

  • Note that although, a decedent's children and parents, grandchildren and siblings, great-grandchildren and nephews, respectively, are the same number of relationships away, children, grandchildren, great-grandchildren, and so forth, will inherit property before anyone else. Thus, a great-grandchild, for instance, will take before a decedent's parent. Furthermore, all of the living descendants of the decedent's parent (if one had no issue of one's own) will take first, before the living descendants of grandparents take. For example, a nephew will take before an uncle.
  1. Children
  2. Parents
  3. Grandchildren
  4. Siblings
  5. Grandparent
  6. Great-Grandchild
  7. Niece/Nephew
  8. Aunt/Uncle
  9. Great Grandparent
  10. Great Niece/Great Nephew
  11. Great-Great Grandchild
  12. First Cousin
  13. Great Aunt/Great Uncle
  14. Great-Great Grandparent
  15. Great-Great Grandchild
  16. Great-Grandnephews/nieces
  17. First Cousins Once Removed (the children of first cousins and descendants of Grandparents)
  18. First Cousins Once Removed (the descendants of Great-Grandparents)
  19. Great-Grand Uncles/Aunts
  20. Great-Great-Great Grandchild
  21. Great-Great-Great Grandparent
  22. First Cousin Twice Removed (the descendants of Grandparents)
  23. Second Cousin
  24. First Cousin Twice Removed (the descendant of Great-Great Grandparent)"[1]

Order of Precedence in the U.K.

This was outlined in the Mental Health Act 1983, Section 26 [3]. This section replaces the traditional term "next of kin" with "nearest relative" (with no change in meaning) and states that the recognised order of precedence is:

  1. (a) Husband or wife;
  2. (b) Son or daughter;
  3. (c) Father or mother;
  4. (d) Brother or sister;
  5. (e) Grandparent;
  6. (f) Grandchild;
  7. (g) Uncle or aunt;
  8. (h) Nephew or niece.

Provided the person is over 18 years of age.

All half blood relatives will be treated as full blood relatives.

This was amended in the Mental Health Act 2007[4] in which civil partners were officially recognised as equal with husband or wife in the original act.

References

  1. ^ a b c d e Problems and Materials on Decedents' Estates and Trusts. Scoles, Halbach, Roberts, Begleiter. Seventh Ed. Aspen Publishers. 2006. ISBN 0735540764.
  2. ^ a b Degrees of Kinship Chart - Kurt R. Nilson, Esq. : MyStateWill.com
  3. ^ [1]
  4. ^ [2]

External links

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