The Georgia Supreme Court has defined “next of kin” as “those interested as distributees of the estate.” McClinton v. Sullivan, 263 Ga. 711 (1994). Who qualifies as next of kin under Georgia law depends on the survivors of the decedent. Generally, the next of kin in Georgia are:
- Surviving spouse
- Children and descendants
- Brothers and sisters
Georgia Law Determines Next of Kin
Georgia law provides the rules for descent and distribution, and who qualifies as next of kin, in O.C.G.A. 53-2-1. Section 53-2-1 applies when a Georgia resident dies intestate (without a will).
The intestate heirs next of kin under Georgia law differ depending on the survivors of the decedent, and are as follows:
Share of the Intestate Estate
No spouse, surviving children
100% to children
Surviving spouse, no descendants
100% to spouse
Spouse and descendants
Spouse and descendants share the intestate property equally, but the spouse’s share may not be less than 1/3
Parents, no spouse, no descendants
100% to parents, shared equally
Siblings, no spouse, no descendants, no parents
100% to siblings, shared equally
Grandparents, no siblings, no spouse, no descendants, no parents
100% to grandparents, shared equally
Uncles and aunts, no grandparents, no siblings, no spouse, no descendants, no parents
100% to uncles and aunts, shared equally
Are Legally Adopted Children Considered Next of Kin?
Yes, legally adopted children are treated the same as natural born children under Georgia law and will inherit as next of kin if they are the survivors of an intestate decedent. O.C.G.A. 53-1-8 states:
A decree of adoption, whether issued by a court of this state or by a court of any other jurisdiction, shall have the effect described in Code Section 19-8-19, and the adoptive parents and relatives of the adoptive parents shall likewise be entitled to inherit from and through the adopted individual under the laws of intestacy in the absence of a will and to take as parents or relatives of the parents of the adopted individual under the provisions of any instrument of testamentary gift, unless expressly excluded therefrom.
Do Next of Kin In Georgia Automatically Inherit When There Is No Will?
No, just because a decedent dies intestate in Georgia does not mean that the decedent’s intestate heirs and next of kin are guaranteed to inherit assets.
Only assets that are part of the decedent’s probate estate pass by intestacy. If the decedent had no probate assets, the next of kin have nothing to inherit from the probate estate. See our Probate and Non-Probate Assets Chart. Assets that are non-probate assets might include joint bank accounts, accounts with pay-on-death beneficiary designations, or jointly owned real property. These assets would automatically pass to the joint owners or named beneficiaries upon the decedent’s death.
Next Of Kin and Final Disposition of A Georgia Decedent
Status of next of kin can mean the authority to implement final disposition of a decedent.
O.C.G.A. 31-21-7 sets forth who can implement final disposition (the final disposal of a deceased human being) of a decedent. Anyone 18 or older of sound mind can enter into a preneed contract to direct the circumstances of the disposition of the person’s remains.
The right to control the disposition of the remains of a deceased person – the location, manner, and conditions of disposition, and arrangements for funeral goods and services to be provided – vests in a list of persons, including next of kin. If there is no health care agent, a person listed on a United States Department of Defense form, or a person designated with the right to control the disposition in a compliant affidavit, the right to control the final disposition goes to the following persons under Georgia law:
- Surviving spouse
- Sole surviving child, or, if more than one, the majority of the surviving children
- Surviving parent or parents
- Surviving brother or sister, or majority of the surviving siblings
- Surviving grandparent of the decedent, or the majority of the surviving grandparents
- Guardian of the person of the decedent
- Personal representative of the estate of the decedent
- Person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent.
If you think you might have rights as next of kin under Georgia law, a Georgia probate lawyer can help you determine exactly what you are entitled to.