In the field of estate planning, clients often have questions about “next of kin”—what is next of kin?…what is next of kin order?…who has more rights…spouse or child? For answers, we turned to Ellen Cookman, JD, founder of the California estate planning firm Cookman Law.
What does next of kin mean?
Actually, “next of kin” isn’t the correct term for how assets are distributed after a person dies. The term “next of kin” usually is used in medical contexts to identify the patient’s closest living relative. For questions about how assets are distributed after a death, the appropriate term is “intestate succession.”
How does intestate succession work?
The word “intestate” indicates that the deceased died without a will, and so a probate court has to determine who receives his/her assets. Having a will prevents this, rendering moot any questions about inheritance. If someone stipulates in his will that all his assets are to be left to a third cousin once removed, it doesn’t matter if the deceased’s spouse or children claim closer kinship.
Intestate succession laws vary by state but generally share a basic framework. How assets are divided depends on whether the deceased person lived in a community-property or non-community-property state…
Community-property states: Most assets acquired during the marriage are owned equally by both spouses, with only certain types of property (including gifts, inheritances and premarital assets) being owned separately. There are nine community-property states—Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In those states, all community assets pass entirely to the surviving spouse. Then some of the separate assets also might pass to the surviving spouse and/or might be divided equally among the deceased spouse’s descendants, depending on the state’s specific rules.
Common law states: These are states where there is no community property, and each spouse owns only what is titled in his/her name. These are also called “separate property” states. Alaska is a common law state, but spouses can elect community property treatment. The remaining 40 states are all common law states, so the estate is distributed according to that state’s laws.
Determining rights
In general,if there is no will, the probate court first looks to the spouse. If there is no surviving spouse, then it looks to the deceased’s children. If the children are deceased, then grandchildren inherit the eligible assets. If there were no children, then the court goes up the family tree looking for the deceased’s surviving parents or grandparents. After all these avenues have been exhausted, the court will look sideways for siblings and then downward from there for nieces and nephews.
Which assets?
Generally, intestate succession applies to any financial assets that aren’t held in a trust and don’t have assigned beneficiaries as do life insurance policies and 401(k)s.
Divorce and adoption
Divorce typically dissolves rights to succession. Adopted children receive equal rights to those of biological children, but stepchildren generally do not unless they are adopted.
