Next of kin are generally defined in Texas as the closest members of one’s family, and are limited to those people living who are the closest blood relatives to the person in question.
Who Are Next of Kin In Texas?
Generally, next of kin in Texas are the persons listed below, in the order listed:
- Surviving Spouse
- Children’s descendants
- Siblings descendants
- Paternal and maternal kindred
The term “next of kin” is used across many circumstances in Texas probate.
Next of Kin And Intestate Succession In Texas
Most commonly, the decedent’s surviving next of kin inform the descent of decedent’s property if decedent died intestate. We have written about the laws of descent in the context of surviving spouse rights in Texas. Texas Estates Code §§ 201.001, 201.002, and 201.003 govern the descent and distribution of the decedent’s property as follows:
Married With Children
If a married person with children dies intestate in Texas, their property descends as follows:
Separate Property Real Estate
Surviving spouse life estate in 1/3, Children and descendants of children subject to life estate
Separate Personal Property
1/3 to surviving spouse and 2/3 to children and descendants of children
All to surviving spouse if all surviving children and descendants are also descendants of surviving spouse
½ to surviving spouse and ½ to children if there are children outside of the existing marriage
Married With No Children
If a decedent in Texas dies married with no children, their separate property real estate is distributed as follows depending on the other surviving next of kin:
¼ to mother, ¼ to father, and ½ to surviving spouse
One parent survives
¼ to parent, ¼ to siblings or their descendants, and ½ to the surviving spouse
No siblings or descendants
½ to parents and ½ to surviving spouse
No surviving parent
½ to siblings or their descendants and ½ to surviving spouse
No siblings or their descendants or parents
All to surviving spouse
All other property goes to the surviving spouse.
Single With No Children
If a Texan dies single with no children, the distribution of their property depends on the next of kin surviving as follows:
Father and mother surviving only
½ to father and ½ to mother
Parent and siblings survive
½ to father or mother and ½ to brothers and sisters
Single With Children
If a decedent dies single with children, then the children take equally or their descendants.
Next Of Kin And Venue Of The Texas Probate Estate
Next of kin in Texas can also matter for where the probate administration occurs. If the decedent did not have a domicile or fixed place of residence in Texas, and died outside of Texas, then pursuant to Texas Estates Code § 33.001, probate can be opened:
(i) in any county in this state in which the decedent’s nearest of kin reside;
Next of kin is defined for purposes of section 33.001 as follows:
(1) the decedent’s next of kin:
(A) is the decedent’s surviving spouse, or if there is no surviving spouse, other relatives of the decedent within the third degree by consanguinity; and
(B) includes a person who legally adopted the decedent or has been legally adopted by the decedent and that person’s descendants; and
(2) the decedent’s nearest of kin is determined in accordance with order of descent, with the decedent’s next of kin who is nearest in order of descent first, and so on.
Next of Kin and Testamentary Capacity In Texas
Next of kin can also be an issue in Texas for purposes of testamentary capacity. In the case of Wysick v. Estate of Wysick, 562 S.W.2d 903 (Tex. App. – Tyler 1978), the appellant argued that the probate court failed to permit explanation of the phrase “her next of kin and the natural objects of her bounty and their claims upon her and to perceive the relationship between these elements and form a reasonable judgment as to them.”
The probate court instructed the jury on testamentary capacity as follows:
By the term “testamentary capacity’ as used herein is meant that the person making the will must, at the time she signed the will, have sufficient mental capacity to understand the effect of making a will, to know the general nature and extent of her property, to know her next of kin and the natural objects of her bounty and their claims upon her and to perceive the relationship between these elements and form a reasonable judgment as to them. . . .
Appellant requested the jury be additionally instructed as follows:
You are instructed that the term “her next of kin and the natural objects of her bounty’ means her descendants, if any, her parents, if any, and her surviving spouse, if any. Her nephews, nieces, brothers, and sisters and all other collateral heirs are not natural or normal objects of her bounty because of such relationship alone, and further that ordinarily the “natural objects of Testatrix’s bounty’ are those who, in the absence of a will, would inherit her property, but the question of who comes within the range of Testatrix’s bounty depends upon the facts and circumstances surrounding the Testatrix.
The court refused to give appellant’s requested instruction. The Texas appeals court determined that the trial court committed no error in failing to submit appellant’s additional requested instruction. A general understanding of next of kin, i.e., that they are the closest members and blood relatives of one’s family, suffices for testamentary capacity in Texas.
Next of Kin and Disposition of Decedent’s Body
Next of kin also matters for disposition of a Texas decedent’s body. The Texas Health and Safety Code specifically outlines the order of priority for next of kin who have the right to control the disposition of a decedent’s remains in §711.002 as follows:
(1) the person designated in a written instrument signed by the decedent;
(2) the decedent’s surviving spouse;
(3) any one of the decedent’s surviving adult children;
(4) either one of the decedent’s surviving parents;
(5) any one of the decedent’s surviving adult siblings;
(6) any one or more of the duly qualified executors or administrators of the decedent’s estate; or
(7) any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.