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Establishing Legal Next of Kin

Next of Kin has the legal authority to make decisions in Texas regarding disposition (burial or cremation) after death. So what establishes who the Next of Kin is?
Establishing Legal Next of Kin
Last Will & Testament

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Next of Kin has the legal authority to make decisions in Texas regarding disposition (burial or cremation) after death. So what establishes who the Next of Kin is?

Once a person passes away there are formal procedures for handling the disposition of the body. Only certain people can make decisions about how the disposition and funeral are carried out. The person charged to handle those tasks is often the Next of Kin.

Too often families think they know who the Next of Kin is and assumptions about who will handle matters are made. Then when the time comes to make arrangements they find the family dynamic isn’t quite what they expected.

Before making end of life arrangements, particularly for direct cremation, make sure you are fully aware of who is considered Next of Kin in your state and what kind of responsibilities they have.

Who is Considered Next of Kin

Next of Kin has the legal authority to make decisions in Texas regarding disposition whether it be burial or cremation after death. So what establishes who the Next of Kin is?

In the United States, Next of Kin refers to your closest living blood relative. There’s a widely accepted hierarchy for Next of Kin, which is used in Texas. The priority for Next of Kin is as follows:

  • Surviving spouse
  • Adult children
  • Parents
  • Siblings
  • Executors of the person’s estate
  • Second-tier Next of Kin (grandparents, aunts, uncles, nieces, nephews, cousins)

Adopted children are considered Next of Kin. The family should also be aware that if a person is separated from their spouse at the time they die the spouse is still considered Next of Kin. A divorce would need to be completed for the estranged spouse to not be legally considered a close living relative.

Another way of looking at Next of Kin is by inheritance. If the person doesn’t have a will, Next of Kin are the individuals that will inherit the person’s estate.

In Texas, the Health and Safety Code legally establishes who is considered Next of Kin and the priority of relatives on that list. If there is ever a dispute over who is the Next of Kin with control over cremation decisions, funeral directors will use the Health and Safety Code regulations to determine who can make decisions regarding cremation or burial.

Right to Control Disposition

There’s another term you may hear in relation to Next of Kin in Texas. In the Lone Star State a person is known to have legal “right to control disposition.” That simply means if they’re at the top of the list of Next of Kin they make the final decision about disposition. For example, if there’s a surviving spouse and two adult children the spouse has the right to control disposition even though there are three Next of Kin.

When you’re designated with the “right to control disposition” you are lawfully responsible for making arrangements. You’re also the person who will be responsible for covering the cost of disposition. So understand the role comes with important, time-sensitive responsibilities.

Common Law and Next of Kin

Common law is often not recognized, and in this instance it would be imperative to have an Appointment of Agent form on file with your family/healthcare provider, to allow an elected person other than the one designated by law, to make your final decisions.

The power of attorney ceases when the person in question dies. The only form akin to that one is the DPOAH, known as the Durable power of attorney for healthcare. It would be imperative that something is in writing to ensure the person you elect will be able to carry out your wishes.

What Happens When There’s More Than One Next of Kin

If there are multiple next of kin, which can be the case if there are two or more surviving children, one person will generally act as the primary point of contact with the funeral establishment. However, it’s important to know the signatures of the majority will be needed to authorize cremation as it is still an irreversible process.

What Happens When Someone is Designated Right to Control Disposition

There is one instance when Next of Kin doesn’t necessarily call the shots for disposition. If the deceased had a last will and testament that specified who should handle the disposition, then the courts are going to recognize that person as having the “right to control disposition” regardless of whether they are a blood relative of the deceased.

Before making any decisions, always check the state laws regarding disposition and Next of Kin. If you are trying to arrange a cremation in Texas our team is here to answer your questions. You can call, text or email us at any time of day to get more information about making cremation arrangements in Texas.

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Marlaena Gonzales

Funeral Director
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