Next of Kin Rules in Florida: An Overview

Who is Considered “Next of Kin?”

Next of kin is commonly defined as "the nearest of kin, the nearest relation who is entitled to (or charged with) an estate upon the death of an intestate. Heirs are those persons entitled to succeed to an estate under the laws of succession when there is no will made by a decedent." This is an important concept in Florida as it applies to what occurs after an individual dies and he or she has no Will (dies intestate). For example, in Florida, the order of the next of kin and requirement to pay medical bills is as follows, under Florida Statute Section 733.1104:

(1)(a) For the purposes of this section, the term "next of kin," when used in the disjunctive, includes "widow or widower," "children," "descendants," "parents," "grandparents," "siblings," and "other heirs."

(b) For the purposes of this section, the term "next of kin," when used in the conjunctive, includes "widow or widower," "children," "descendants," "parents," "grandparents," "siblings , " and "other heirs." The degree of relationship between the decedent and his or her next of kin shall be computed as provided in s. 732.103(1), taking into account the following rules:

• The relationship of each heir or next of kin to the decedent shall be traced up to the common ancestor, and then down to the heir or next of kin.
• The relationship between parents and grandparents shall be traced upward to the nearest common ancestor and then downward to the parents, grandparents, uncles, aunts, nephews, nieces, and other cousins.
• An adopted child is treated the same as a biological child for the purposes of any class.
• (2) After the debts and expenses of the last illness of a decedent have been paid and, if there are no funds with which to make such payment, a reasonable sum has been paid to the priorities under s. 733.2102(1), the surviving spouse, widow or widower, children, and the descendants of deceased children shall pay the last sickness and funeral expenses in equal shares, but not in excess of $600, unless otherwise provided by contract.

Florida Next of Kin Order

The hierarchy of next of kin is the order in which the law recognizes family members in matters of legal, medical decision-making or inheritance and the general rule is that in either case, the closer to the family member is the one that the law will favor, starting with the first, next of kin. However, the ability of the closest next of kin to make decisions in the absence of a legally appointed guardian may depend on specific circumstances.
As previously mentioned, the pecking order for next of kin is spousal priority, followed by children, and then parents. The third level is more specific, with more categories and possible variations, based on whether the siblings are full or half brothers and sisters, and whether the deceased married more than once:
The next level down is a combination of the above, extending to nieces and nephews, aunt and uncles, great-aunts and great-uncles, grandparents, and finally great-grandparents.
As you can tell, the list is ultimately long, in the event you have no spouse, children, or living parents. While the terms "next of kin" and "heirs in intestacy" are often mentioned together, this is not entirely correct. The reason is that next of kin refers to the hierarchy of relationships that exist in the absence of legal documents such as wills and powers of attorney, while heirs in intestacy refer to the order of distribution of assets at death based on the law of intestacy, which is quite similar but not identical to the order of priority for next of kin.
A good example of the difference between the two is that, under the statute, cousins are not considered next of kin but they are heirs in intestacy under the law (if there are no surviving children, living parents, legal guardians, etc.). As a result, cousins are unlikely to be the appropriate individuals to manage the affairs or the estate of a family member with a disability if he or she has no other close living relatives.

Next of Kin Authority

The next of kin have a number of rights and responsibilities when it comes to medical decisions, inheritance, and when there’s been a death.
Medical Decisions
According to Article 3 of Florida Statute 765.201, the following parties are legally considered the next of kin and possess the right to make medical decisions on behalf of an incapacitated family member:
If the incapacitated patient has no guardian or health care surrogate, then the next of kin shall be:
• The patient’s father or mother
• The patient’s son or daughter
• The patient’s brother or sister
• A person who was partially or completely dependent upon the patient for support at the time of the patient’s death.
The order of priority is governed by blood relationship, so grandparents come before aunts and uncles, and aunts and uncles come before cousins. Step-siblings and half-siblings are considered "close relatives" and are given equal standing with siblings in the law. A spouse generally has the highest priority, but a person who has never been married to the patient may be accepted as a "close personal friend" if he or she will act in good faith for the patient’s welfare, and they have personally known the patient for more than five years, and have spent significant time with the patient during that period.
Hierarchy of Rights
Even if the spouse is in another state, has a pending divorce, or is legally separated, he or she has higher priority than any other relative, and may act on behalf of the incapacitated patient.
If a question arises as to the ability or suitability of the person in charge of making the decision for the patient, the next of kin may petition the court to decide who is best for the job.
The order in which the next of kin are allowed to make decisions is as follows:
• Spouse
• Adult child
• Parent, stepparent, or foster parent
• Adult sibling
• Grandparent
• Adult grandchild
• Adult Aunt or Uncle
• Adult Cousin
• A person who was partially or completely dependent upon the patient for support at the time of the patient’s death
Homestead property
Under the terms of the Florida Constitution, homestead property cannot be devised to someone via a will. Such property must pass automatically to the surviving spouse and (if there is one) minor child, and to the elective share if there is no minor child. The spouse cannot refuse the homestead property and opt for the elective share.
If a person dies without a surviving spouse yet has one or more minor children, the real estate property passes to the minor children. In this case the property could not be voluntarily conveyed unless "the persons entitled to the homestead under the intestacy statute consent in writing and devise their interests in the property to the grantee in the deed."
If a person dies without a surviving spouse or if that spouse has renounced the homestead property, then the homestead property in question is split between the surviving child, or children, and the parents.
If a person dies without a surviving spouse and has no surviving minor children, then the homestead property shall descend according to the intestacy statute.

How a Next of Kin is Determined by Law

The determination of next of kin in Florida is vital in various legal situations, including probate administration, intestate succession, and healthcare decision-making. The law identifies the next of kin to determine who has legal standing to make decisions for someone who has become incapacitated, or to distribute the assets of an estate in the absence of a will.
Next of kin is determined as follows under Chapter 732 of the Florida Statutes:

• Hierarchy. The concept of next of kin is hierarchical, meaning that the law prioritizes the order of next of kin. The hierarchy begins with the spouse, followed by descendants (children, grandchildren, great-grandchildren), parents, siblings, and then more distant relatives such as aunts, uncles, cousins, and finally, the parents of deceased parents.
• Judicial Determination. If the next of kin is not readily ascertainable, or there is a dispute about who is the next of kin, the matter may have to be determined by a circuit court. The most common example of this is a determination of heirs in a probate proceeding. A probate action may be initiated by interested persons in order for the court to determine heirship or to determine who qualifies as next of kin for purposes of intestate succession of probate property.
• Surviving Spouse. A surviving spouse is also next of kin, however, their standing to inherit property or to stand in the stead of the decedent varies significantly from the other classes of next of kin. The surviving spouse is entitled to inherit the entire estate if there are no descendants or parents. If one or more descendants survives the decedent, then the surviving spouse is entitled to the greater of the following: one-half of the estate or a life estate in one-half of the estate, with the descendants receiving the remainder.
• Domesticated Reciprocal Beneficiary is also considered next of kin in Florida. Florida law recognizes reciprocal beneficiaries pursuant to Chapter 2051, Florida Statutes. A reciprocal beneficiary means two adults who are legally prohibited from marrying one another because of a different sex or a different marital status – think grandparent/grandchild or half-siblings. Pursuant to Florida Statutes section 2052.051, reciprocal beneficiaries are legally entitled to the same rights as a spouse and are considered next of kin.

The Role of Next of Kin in Settling a Decedent’s Estate

In the context of estate settlement, the role of the "next of kin," which generally means the blood relatives of the decedent, is particularly important when a decedent dies without a will or a will is not admitted to probate. In the absence of a will, the decedent’s next of kin are the ones that will inherit in "intestate succession." Intestate succession in Florida is discussed in detail in Florida Statute 732.101. Basically, if a decedent has no wife or children at the time of death, the decedent’s parents are the next of kin and they inherit the real property and personal property of decedent.
If there is a will, again the next of kin may not be the beneficiaries. Instead, it may be necessary to probate the decedent’s estate depending on the value of the estate . Most times, an estate must be probated to transfer title to real property and personal property from the decedent to the beneficiaries. In addition, the Personal Representative, who is usually also the beneficiary or the next of kin, has the responsibility to file certain documents with the State of Florida to put the world on notice as to the Decedent’s death and the status of the estate. Florida Statute 733.212 requires that a Naples probate attorney must publish a Notice to Creditors within three months of the date that the Personal Representative took the oath of office.
The Personal Representative must also serve each beneficiary of the decedent a copy of the Notice to Creditors. Notice must also be provided to the next of kin if they do not have actual knowledge or if their whereabouts are unknown. The attorney must also mail a copy of the Notice of Administration to the next of kin.

Disputes and Litigation

Where life circumstances are absolutely clear-cut, most problems can be avoided, but that is not always the case. While courts do attempt to honor the wishes of the deceased in Florida as strongly as possible, disputes can occur after a person passes that threaten to delay or even prevent payment of benefits.
• Adopted Children
In Florida, a child’s right to inherit from his or her birth parents ends at the moment of adoption. However, an adoptive child may inherit through and from his or her birth family as long as the adoption specifically references the possibility.
In the case of foster children who are not likely to be adopted, certain laws may intervene to allow an award of child benefits by way of intestate succession. However, disputes can occur over whether the foster child was cared for long-term and to what degree, and the degree to which the foster parent had any formal involvement or oversight in the child’s upbringing.
• Paternity
This can be a highly contentious and emotional issue and may require DNA testing in order to resolve. The most common disputes arise in situations in which a child is born to a mother outside of marriage before being adopted by a father, who is not the child’s biological parent. Disputes can arise over the "presumption of paternity" exercised by the state each time a birth certificate is generated.
Another frequent issue is the child of a married couple who is not biologically related to either parent. In these situations, the "presumption of paternity" statute comes into play. In this state, the mother’s husband is presumed to be the child’s legal father. Likewise, the biological father is presumed to be the child’s legal father once paternity is established.
• Frauds
In some situations, it’s possible that an heir may be temporarily declared legally incompetent. Such individuals may be taken advantage of by other parties – powers of attorney (POAs) or new spouses, for example – for their own purposes. In those cases, family members may need to seek legal action to protect an estate and its potential heirs.
• Mental Competence of the Deceased
The law in Florida allows any interested party to petition a court to declare an individual legally incapacitated. This determination can have far-reaching effects, so it should not be pursued lightly. Once decided, the individual assigned as guardian will determine whether any or all of the legal or financial matters for the ward will be handled, rather than the individual themselves.
• Undue Influence
This is another point at which a clear-cut case may break down. A situation may seem quite obvious to some family members, who then argue there is no need for a will because the deceased verbally expressed his or wishes. However, it may turn out that the deceased did not have the mental competency to take such a step. Detailed records of all communications and other documents, including dates, will be vital in these cases.

How to Prepare for Your Next of Kin Role

Being next of kin in Florida entitles you to certain rights when it comes to administering a deceased loved one’s estate, making medical decisions, accessing medical records, and more. It can also, however, create certain responsibilities—such as shouldering the administrative burden to probate an estate, should your loved one have died without a will. The following are some steps you can take now to help you in your role as next of kin later on.
Consider Financial And Medical Power of Attorney
If your loved one becomes incapacitated, medical and financial power of attorney allows you to make medical and financial decisions on your loved one’s behalf. This can simplify things when the time comes, and can even help you avoid the need for guardianship proceedings. Be sure to overview the role of financial power of attorney with your loved one (such as who will handle their estate if they become incapacitated) and obtain the required documentation to act on their behalf; the Florida Bar Association has a good overview of these roles .
Prepare Legal Documents
If your loved one becomes incapacitated or deceased, there are several legal documents you may need in order to carry out your duties. This includes medical directives (such as a living will or healthcare surrogate form), trusts, wills, and death certificates. The Florida Bar Association outlines what happens if you cannot locate these documents, and how to obtain a death certificate in Florida. In most cases, it is wise to have a copy of these documents on hand before your loved one needs them; this not only saves time, but also ensures you will immediately have access to the documents you need upon their passing.
Communicate with Your Loved One and Other Kin
Have an open and honest discussion with your loved one about their wishes. The earlier the better, as this will ensure the continuity of care and ability to carry out their wishes in a timely manner. While you will have legal rights, you’ll want to coordinate with other family members and your loved one to carry out their wishes.