Next of kin in North Carolina is defined as “those persons who would take under the law of intestate succession…” See section 41-6.1, N.C. Gen. Stat.
In enacting N.C. Gen. Stat. Sec. 41-6.1 in 1967, the North Carolina Legislature made “next of kin” synonymous with “heirs.” G.S. Sec. 41-6.1 reads:
A limitation by deed, will, or other writing, to the ‘next of kin’ of any person shall be construed to be to those persons who would take under the law of intestate succession. . . .
Who Are Next Of Kin Under North Carolina Intestate Succession Law?
Under the North Carolina laws of intestate succession, the next of kin that inherit depends on who survives the decedent.
Surviving spouse, no descendants or parents
100% to spouse
Children but no surviving spouse
100% to children, divided equally between them
Surviving spouse and one child or descendants of one child
50% of intestate real estate to spouse and portion of intestate personal property (if $60,000 or less of personal property, 100% to spouse; if more than $60,000 of personal property, spouse gets $60,000 and 50% of the balance)
Child or descendants get remaining 50% of real estate and balance of personal property
Surviving spouse, and two or more children or descendants of those children
1/3 of intestate real estate to spouse and portion of intestate personal property (if $60,000 or less of personal property, 100% to spouse; if more than $60,000 of personal property, spouse gets $60,000 and 1/3 of the balance)
Children or descendants inherit other 2/3 of intestate real estate and any intestate personal property after the surviving spouse’s share
Surviving spouse and parents
50% of intestate real estate to surviving spouse, and a portion of intestate real property (if $100,000 or less, spouse inherits $100,000 plus ½ balance
Parents inherit 50% of intestate real estate and any intestate personal property after the surviving spouse’s share
Parents, but no surviving spouse or descendants
100% to parents
Siblings, but no surviving spouse, descendants, or parents
100% to parents
Are A Decedent’s Children Always Next of Kin In North Carolina?
A decedent’s natural children and adopted children are considered next of kin under North Carolina law. Under N.C. Gen. Stat. 29-17, legally adopted children will receive an intestate share of a decedent’s estate just like biological children.
Children born outside of the marriage sometimes qualify as next of kin intestate heirs under North Carolina law. N.C. Gen. Stat. 29-19 provides that if a decedent was not married to the child’s mother when the child was born, the child will only receive a share of the intestate estate if:
- they have been legally legitimated;
- decedent acknowledged paternity; or
- the child was born within 1 year of decedent’s death and paternity was established through DNA.
Foster children, stepchildren, or a child adopted out of the family will not receive an intestate share of decedent’s estate or be considered next of kin under North Carolina law.
A child of a decedent born after decedent’s death will receive a share of the decedent’s intestate estate as long as they were born within ten months of the decedent’s death. N.C. Gen. Stat. 29-9.
If you are unclear about whether a child will inherit under North Carolina intestacy law, a North Carolina probate lawyer will be able to help you.
Does A Next of Kin Control The Decedent’s Burial?
Under North Carolina law, as a general rule, the next of kin have the right to possess the body of a decedent for the purpose of burial. However, a testamentary provision concerning burial overrides the contrary wishes of a decedent’s next of kin. Said another way, decedent’s wishes for burial trump a next of kin’s contrary directives.