California’s Definition of Next of Kin
In California, "next of kin" is generally understood as a person’s closest living relative or relatives. California’s Probate Code uses the terms heir and kin in the same way it uses the term next of kin. The term usually refers to those who would inherit from a person if that person died intestate. In California, those who are considered heirs include the decedent’s surviving spouse, children, grandchildren, parents, grandparents, siblings, and whether they were born or not, the surviving issue of a deceased child or sibling. Under California Probate Code Section 78, "kin" means "all of one’s blood relations . " The term next of kin may include those who are only partially related to the decedent, such as a half-sibling or a half-grandchild. Those who raised the decedent as their own child could also qualify as potential heirs or "next of kin," provided there is no one else surviving the decedent who would take precedence over that potential heir. Additionally, as used in the Probate Code, "decedent’s other issue" includes "a stepchild" even if the stepchild is not adopted by the decedent; however, non-marital children do not qualify as "next of kin."
Next of Kin’s Role in Estates and Trusts
In the absence of a will, California law identifies the next of kin of a deceased person as the first in line to inherit. Under the California Probate Code, the next of kin has the first right to divide the decedent’s property (real estate or personal property) in a manner by agreement or otherwise. In the event that the next of kin and interested parties cannot agree in dividing the property, the court, through a Petition to Partition (Division) Property, may step in to decide how the property should be divided.
The court presumes that if there are no wills or trusts, the next of kin may sell the property to the highest bidder, if it appears to be for the best interest of all parties concerned. A partition action typically results when co-ownership of property happens amongst those who might otherwise have nothing to do with one another. Without a will or a trust, the state of California may end up taking the entire property in order to enforce the decedent’s unpaid debts.
In the absence of an agreement, partition actions must be filed in the Superior Court in the county in which the property or real estate is situated. This will give the Court jurisdiction to divide the property. The following shows who has preference when it comes to the division of property, first among them being:
i. Children
ii. Father, mother, brother, sister (and children of sister)
iii. Grandchildren
iv. Grandfathers, Grandmothers
v. Uncles, Aunts (and their children)
vi. Great-grandchildren
vii. Nephews & nieces (and their children)
viii. Beyond cousins
Partition actions are designed to avoid a forced sale of property, which otherwise can happen in case of disagreement amongst the heirs or family members who might tend to argue over specific assets in equal shares.
Healthcare Decisions and the Next of Kin
The role of next of kin in making healthcare decisions concerning an incapacitated individual is one that the healthcare community often encounters. Problems arise, however, when the next of kin is not next to kin – for example, when two people have lived together for decades as partners, but are not married. The issues are particularly poignant when the person is a long-time partner but not married.: Whether a person is "next of kin" or not is not always cut and dried. California has enacted legislation that can expand the rights of the next of kin to participate in medical decision-making for an incapacitated individual.
An attorney is usually hired to write a Power of Attorney that allows someone to make decisions on behalf of another person in the event of that person’s incapacity. California, however, has adopted laws that permit the "next of kin" to make these decisions if an agent under a POA is not available. Under the authority of Welfare & Institutions Code § 4650.5, the Next of Kin is defined as any of the following persons: (1) the spouse of the patient; (2) the adult son or daughter of the patient; (3) the mother of the patient; (4) the father of the patient; (5) the adult brother or sister of the patient; (6) the grandparent of the patient; or (7) a relative of the patient who has exhibited special care and concern for the patient and who has an ongoing relationship with the patient.
The Next of Kin has the authority to make decisions concerning surgical and medical treatment for the patient, including what procedures to institute, when to institute them, and when to stop the procedures. The Next of Kin may also make decisions on other issues involved in the patient’s healthcare, such as whether to direct that the patient be examined, diagnosed or treated for a physical or mental condition. The Next of Kin may also take over the decedent’s financial affairs in the event the decedent was incompetent at the time of his or her death.
Intestate Succession Without a Will
The process of determining how property owned by a decedent passes to heirs is called succession. The procedure may be informal or formal, depending upon the type and value of the property. Heirs will inherit property acceded through succession if you die without a will, or in legal terms, intestate.
Though intestacy is something most people would rather avoid, it happens more often than not. In fact, according to the American Bar Association, an estimated 55% of Americans die without a will in place. If you pass away intestate, your heirs inherit your property based on California’s laws of intestacy.
If you pass away as a single person, your heirs inherit your intestate property as follows: If you were married at the time of your death, your spouse inherits all of your community property and separate property, except for any property that belongs to your children, which is inherited as indicated above.
Broadly stated, the following property passes in the intestate succession: This list is not exhaustive, and the laws further provide special rules for particular relationships, such as when stepchildren are involved. Please note that property does not pass via intestate succession to a deceased beneficiary listed in a will that survives the decedent. Lastly, though there is no requirement that an estate be probated in order to transfer property through the laws of intestacy, property passes subject to creditor claims under probate procedures.
Disputes Over Next of Kin Status
Next of kin claims can sometimes involve substantial legal challenges. For example, disputes might occur over the nature of the kinship (i.e., was the individual actually an aunt, uncle, grandparent, etc.). In addition, disputes can occur over how to distribute the deceased person’s possessions and finances. These disputes can arise between heirs, family members (including descendants of other family members), such as:
- a widow or widower
- sons/daughters
- grandchildren
- great grandchildren
- aunts/uncles
- nieces/nephews
- cousins
Common legal disputes also involve personal care and medical decisions. If the decedent (or a person acting on that individual’s behalf) has already made an advance healthcare directive, most states will recognize these documents. Disputes can still arise, however, between next of kin regarding some elements of the decedent’s care. If a dispute occurs between potential heirs of a person who is deceased, the claims of all potential heirs are usually heard in a probate court. Next of kin cases in a probate court usually follow a well-defined process. They include the following steps:
- The filing of a petition for the decedent’s estate.
- A hearing to determine whether heirs actually exist (if no will existed, these parties have priority under the law).
- If no heirs are found or if all property is otherwise owned jointly, the property is distributed to the local state.
Note that a person who believes to be next of kin can file a will contest proceeding in order to contest a will that they believe unlawfully disinherits them. The court will require evidence from both sides before deciding. The parties can also resolve many disputes ahead of time by using alternative dispute resolution (ADR) methods. Mediation or arbitration can prevent the issues above from escalating into legal proceedings.
How to Prove You Are Next of Kin
While identifying next of kin may seem as simple as asking family and friends about the decedent’s relatives and friends, the legal process required to determine who may be considered next of kin is more complex. In California, the Probate Code Section 250 establishes a comprehensive list of the family members and relatives who may be considered next of kin. Under the statute, those who may be considered next of kin include, in order of priority:
- spouse;
- registered domestic partner, pursuant to the Family Code Sections 297 et seq. or Sections 12100 et seq. (but effective July 1, 2005)
- children (adult or minor);
- grandchildren (adult or minor);
- siblings (adult or minor. California Probate Code Section 421 establishes that if there are no living siblings, the next of kin are the offspring of the siblings in the order of priority, i.e., the children of the decedent’s siblings);
- parents;
- grandparents;
- aunts and uncles;
- nieces and nephews; and
- other kindred of the decedent.
If the person died after January 1, 2000, the person’s parent, brother , sister, grandparent, or the issue of one of the decedent’s parents, brothers, sisters, or grandparents is entitled to receive the decedent’s property, if any, that is subject to intestate succession as provided in the Probate Code Section 6402, pursuant to Probate Code Section 6402.5. If the person died before January 1, 2000, the same individuals in the order listed above shall be entitled to receive any of the decedent’s property if the collective value of the decedent’s personal property is less than $100,000.00 and his/her real estate is valued not more than $100,000.00. While in many cases, the next of kin may be known to the public, determining who qualifies as next of kin requires the next of kin to establish his or her kinship with the decedent. The following are some of the legal documents that can be used to establish kinship with the decedent:
- Birth certificate;
- Marriage certificate;
- Registered domestic partner affidavit, pursuant to California Family Code Sections 298 et seq. (but effective January 1, 2005); and
- Declaration of next of kin (see Appendix E).
Provisions for Next of Kin Versus Beneficiaries
It is important to understand that a person does not have to be a next of kin in order to be a designated beneficiary. On the other hand, just because a person is a next of kin does not mean that he or she is a designated beneficiary. In other words, you could be a designated beneficiary without being a next of kin, and you could also be a next of kin without being a designated beneficiary.
The difference between the two concepts has to do with the way the relationship is established and the legal status it confers. Generally speaking, a person who is a next of kin obtains that designation by birth. A person who is a designated beneficiary generally obtains that designation by a third party’s intent, usually made in the form of a will, trust, or other document that specifically names them as a beneficiary.
An example can help clarify the difference: You and your spouse want to purchase a home together, and the purchase agreement calls for both of you to sign the deed to the property. Your spouse has two children from a previous marriage, and you have three children from your previous marriage. The estate attorney tells you that only one of you needs to take title to the property and that the other can simply be designated as an interest holder. So, your spouse takes sole title to the property, and you are designated as an interest holder. After your spouse passes, you sell the home, using the proceeds to purchase your own smaller home. A few years later, your spouse’s children sue to collect their father’s half.
You must substantiate your claim that you are entitled to receive these funds. You cannot simply say, "I’m married to the decedent, and so I have a right to inherit.’ Your children can make the same claim against you, arguing that your intestate share of the money must satisfy your obligation to your children’s needs first. Your spouse’s children can also claim however that there is evidence that your spouse intended the funds to go to your spouse’s children. Because your spouse intended to take title to the home and to designate you as an interest holder, this does not mean that your spouse intended to leave the proceeds of the sale of the home to you. The designated beneficiary was you, not the home. The court will need to hear the evidence from all parties to determine what your spouse’s intent was. As a result, it is important to communicate with family members about these issues in advance to clearly determine who will receive the assets after a death.
When Marriage and Divorce Affect Next of Kin
The next of kin laws in California also contemplate the effect of a new relationship on the order of succession. Marital status changes and the subsequent impact on next of kin status is clearly demonstrated in the case of Marriage Of Z.M. (1994) 26 Cal.App.4th 1095. In this case, Z.M. was married to a woman in 1988. In 1990, they separated. One year later, Z.M. was killed in a motorcycle accident, leaving behind a son, Robert. Robert’s grandparents brought a motion and petitioned the court to be appointed guardian of Robert.
Currently, a wife cannot inherit from the husband’s estate should the husband die while they are separated but not divorced. Thus, because Z.M. was still married to his wife at the time of his death, she was legally entitled to be the administrator of his estate as his sole heir, which made her Robert’s next of kin. However, their separation allowed the court to determine that the wife’s rights as Z.M.’s heir were subject to priority to that of the grandparents by virtue of their "long established" parent-child relationship with Robert.
Under the subsequent enactment of Family Code sections 2030 et seq., however, when Z.M. was killed, his wife was entitled to seek dissolution of her marriage to Z.M. Assuming that such a request was properly filed, Title 24 would now apply, arguing that a spouse who has filed for dissolution at the time of the other spouse’s death is no longer considered his or her spouse nor his or her next of kin. Therefore, under the new Family Code sections, the spouses "status will be effectively severed and Z.M.’s wife would not be entitled to administration of his estate as the surviving spouse . . . and would not be Robert’s next of kin even though there had been no final judgment of dissolution." The grandparents’ Petition to be appointed guardian of Robert’s person was granted.
The moral of this decision was that husbands who are separated but not divorced from their wives at the time of their death can, under certain circumstances, mete out their property to their next of kin, such as their children, the result may be that such spouses run the risk of being disinherited by their separated husband’s death, should he fail to name them as beneficiaries.
Enforcement of Next of Kin Rights
In order to protect and maximize the rights of a client’s next of kin, this may mean obtaining the proper legal tools that best suit the situation, in a timely fashion. These tools include wills, powers of attorney, and advance healthcare directives, to name some common ones. These tools not only help the next of kin but also streamlines the administration of the estate by minimizing the likelihood of disputes among family members and making the probate process easier for the court to supervise.
Will
The client can incorporate various wishes concerning the treatment of their remains and disposition of their assets in a written will, such as:
- who should be responsible for the cost of the client’s funeral;
- who the client would like to receive any personal effects or items;
- who should be in charge of the client’s medical care during his or her last days;
- what medical treatments the client wants/don’t want for his or her condition;
- who the client would like to take care of substituted decisions (i.e., managing the client’s finances) if the client is no longer able to do so on his or her own;
- the person or organization to be named as the client’s executor; and
- any specific funeral or burial wishes.
Power of Attorney
Under California Probate Code , the term "power of attorney" generally refers to a power of attorney for health care matters, unless otherwise indicated. A power of attorney for health care matters is a written authorization for an individual to make medical decisions for a client when the client can no longer do so themselves; and submit them to the provider for the provider’s signature. Once signed by the health care provider, the written instructions become effective immediately, and remain effective until the principal revokes them.
Advance Health Care Directive
An advance health care directive is a form that gives instructions about the health care a person would like to have if they become incapable of making their own health care decisions. In addition, the advance health care directive allows the person to appoint an agent to make such decisions. The advance health care directive goes into effect only when the person is no longer able to make those decisions (typically, when they are comatose or in a persistent vegetative state). The use an advance health care directive is voluntary, and does not make a judgment as to the quality of life a patient has, wants, or will have.
These are just a few examples of the tools that the client may utilize to protect the rights of their next of kin, especially when medical conditions make it difficult for the client to manage his or her own affairs.