“Next of kin” in California “simply means those upon whom … the law has conferred the right to inherit the property of one who dies intestate.” Estate of Paterson.
In layman’s terms, next of kin under California law are generally a decedent’s closest living family members who survive the decedent.
Who Are Next of Kin In California?
If someone dies a California resident, their next of kin are generally the following persons, in the following order:
- Surviving spouse or registered domestic partner
- Child(ren)
- Grandchildren
- Parent(s)
- Sibling(s)
- Nieces and Nephews
- Grandparents
- Aunts or uncles
- Cousins
- Issue of predeceased spouse
How Is Next of Kin Determined?
To determine next of kin in California, go down the list until someone exists in the category listed.
You only get to the next category on the list if people in the prior category did not survive the decedent.
For example, if decedent had no surviving spouse or registered domestic partner, but was survived by adult children, then the adult children would be next of kin.
What Are California’s Intestate Succession Laws?
Next of kin in California are the same as intestate heirs under California law. Intestate heirs are those persons that inherit when a Decedent died without a will. Who inherits what depends on the survivors of the decedent:
Survivors of Decedent | Inheritance Rights |
Spouse only | Spouse inherits all community property and separate property |
Children only | Children inherit all community property and separate property |
Spouse and children | – Spouse inherits decedent’s share of the community property – Spouse inherits 1/3 of the separate property if there is (1) more than one surviving child of the decedent; (2) decedent has a surviving child and a surviving grandchild of at least one deceased child; (3) decedent has surviving grandchild of at least two deceased grandchildren. – Spouse inherits ½ of the separate property if decedent had one surviving child – Children inherit balance of separate property |
Spouse and parents, but no children | – Spouse inherits decedent’s share of the community property – Spouse inherits ½ of separate property – Parents inherit balance of separate property |
Parents, no spouse, children, or siblings | Parents inherit all of the community property and separate property |
Spouse and siblings, no parents | – Spouse inherits decedent’s share of the community property – Spouse inherits ½ of separate property – Siblings inherit balance of separate property |
Siblings, no spouse, children, or parents | Siblings inherit all community property and separate property |
Under California law, if a decedent was survived by a spouse, the spouse inherits both community property and some separate property, as discussed here, and as set forth in Section 6401 of the California Probate Code. But, if there is no surviving spouse, or an intestate estate, then status as next of kin in California comes into play.
California law also sets forth the next of kin hierarchy for the intestate distribution of separate property or the entire estate if there is no surviving spouse:
Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:
(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
(b) If there is no surviving issue, to the decedent’s parent or parents equally.
(c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
(d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
(e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
(f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote.
(g) If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
When Does Being Next of Kin in California Matter?
Status as someone’s next of kin in California can come into play in several different circumstances, both during life and after death.
During life, if someone has no health care surrogate, then next of kin will be the person tasked in making decisions should the person become unable to do so.
After death, next of kin in California means the same thing as the intestate heirs of the estate. Therefore, knowing the next of kin is required if the decedent dies without a will. Also, being next of kin in California can come into play if an autopsy is requested. Although a surviving spouse, surviving child or parent have priority, if none of these persons exist, the next of kin may be called upon to authorize an autopsy under California law.
