- Next of kin
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This article is about the term. For other uses, see Next of Kin (disambiguation).
Next of kin is a term with many interpretations depending on the jurisdiction being referred to. In some jurisdictions, such as the United States, it is used to describe a person's closest living blood relative or relatives. In others, next of kin may have no legal definition and may not necessarily refer to blood relatives at all, as in the United Kingdom.
In some 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 some 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, First cousins, aunts & uncles, or 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.
The opposite term is a stranger in blood.
Contents
United States
Decisions about funeral arrangements for an unmarried person without children may be 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.
Order of precedence in the United States
"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 decedent." [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.
- Children
- Parents
- Grandchildren
- Siblings
- Grandparent
- Great-Grandchild
- Niece/Nephew
- Aunt/Uncle
- Great Grandparent
- Great Niece/Great Nephew
- Great-Great Grandchild
- First Cousin
- Great Aunt/Great Uncle
- Great-Great Grandparent
- Great-Great Grandchild
- Great-Grandnephews/nieces
- First Cousins Once Removed (the children of first cousins and descendants of Grandparents)
- First Cousins Once Removed (the descendants of Great-Grandparents)
- Great-Grand Uncles/Aunts
- Great-Great-Great Grandchild
- Great-Great-Great Grandparent
- First Cousin Twice Removed (the descendants of Grandparents)
- Second Cousin
- First Cousin Twice Removed (the descendant of Great-Great Grandparent)"[1]
United Kingdom
The term has no legal definition in the United Kingdom. An individual can nominate any other individual as their next of kin. There is no requirement for the nominated person to be a blood relative, although it is common. The nominated person must agree to the nomination, otherwise it is invalid. The status of next of kin confers no legal rights and has no special responsibilities, except as referred to below in the specific context of the Mental Health Act.
The status of next of kin does not in any way imply that they stand to inherit any of the individual's estate in the event of their death.
In the context of health care, patients are often asked to nominate a next of kin when registering with their general practitioner, or alternatively on admission to hospital. Hospitals will then notify the next of kin that the patient has been admitted or if there is any change in their condition. If the patient is unconscious or otherwise unable to state their next of kin, hospitals will usually list their nearest blood relative, though there are no specific rules. Doctors attempt to seek the views of the next of kin when considering decision making for unconscious patients or those who lack capacity. The next of kin has no power to make any decisions regarding medical care, only to advise, and can neither override the previously stated wishes of the patient nor prevent the medical team acting in what they consider to be the best interests of the patient.
Powers similar to next of kin as defined in other jurisdictions can be explicitly delegated to another person using Lasting power of attorney,[3] under the provisions of the Mental Capacity Act 2005 [4] (note that this Act does not relate specifically to mental health and is largely unrelated to the Mental Health Act).
Mental Health Act
The Mental Health Act 1983, Section 26 [5] confers a specific set of rights and responsibilities in the context of the treatment of mental illness. 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:
- (a) Husband or wife;
- (b) Son or daughter;
- (c) Father or mother;
- (d) Brother or sister;
- (e) Grandparent;
- (f) Grandchild;
- (g) Uncle or aunt;
- (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[6] in which civil partners were officially recognised as equal with husband or wife in the original act.
References
- ^ a b c d e Problems and Materials on Decedents' Estates and Trusts. Scoles, Halbach, Roberts, Begleiter. Seventh Ed. Aspen Publishers. 2006. ISBN 0735540764.
- ^ a b Degrees of Kinship Chart - Kurt R. Nilson, Esq. : MyStateWill.com
- ^ Making decisions for someone else, Office of the Public Guardian
- ^ Mental Capacity Act 2005
- ^ Mental Health Act 1983
- ^ Mental Health Act 2007 (c. 12)
External links
Categories:- American legal terms
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