Establishing the Next of Kin in Wisconsin
Next of kin is envisioned under Wis. Stat. 851.31-32 and is a crucial concept in the discussion of a person’s family members after death – particularly when that person dies without a valid will. Having at least a basic understanding of what is considered next of kin is moderated under Wisconsin law, including grandchildren, siblings, parents, grandparents and even cousins.
Wisconsin defines next of kin as "the nearest relation in degree of kinship to the decedent". Primarily, a person’s "nearest relation" is a spouse or child. In certain cases, a parent can be deemed the "nearest relation" as well. For purposes of the legal definition of next of kin, a spouse or children of someone has the same meaning that it would have for purposes of determining who may make a claim for wrongful death of that person (as stated in Wisconsin Statute 895.04).
As mentioned above, the definition of next of kin is extended to grandparents, grandchildren and even more distant relatives such as aunts , uncles or cousins. Indeed, when an individual has no surviving spouse, children or parents, the next individual to be considered next of kin would be their siblings – with the degree of separation (or kinship) continuing to increase until a living relative is found.
The determination of "next of kin" is highly significant when there is no will. When deciding who inherits the deceased’s property, Wisconsin Statute 857.03 determines the passing to the greatest extent provided under the law. A Wisconsin lawyer can help you determine what is considered to be the "greatest extent" in your case.
Similarly, when issues arise regarding who will make vital health-related decisions, Wisconsin Statute 155.25 states the court shall appoint someone of priority if a person is "incapacitated."
Essentially, next of kin is a broad definition to establish various familial relationships. Next of kin governs who may inherit property, make health decisions and stand in the place of a person in legal matters.
The Order of Next Next in Wisconsin
The hierarchy of next of kin is a way to determine who will make health care decisions for someone who is unable to make their own decisions about their medical care. The types of decisions that are made include (1) whether health care should be continued, suspended, or withdrawn, (2) what health care should be provided, and (3) where the decisions are implemented.
Every state has laws determining who is qualified to make these health care decisions, which don’t necessarily require a court order. In Wisconsin, the health care decision makers are known as "next of kin," or "relatives." The status of next of kin in Wisconsin is determined by (1) marital status, (2) birth order, and (3) whether one’s ability to receive a share of an estate has been barred by divorce or otherwise.
The first to be considered is a spouse. If there are children, they are second in line. Next in line are parents and then siblings (i.e., brothers and sisters). If there are no siblings, aunts and uncles come next. After aunts and uncles are the patient’s grandparents. If grandparents are not available, the next step is to look at the grandchildren of those same grandparents listed. Finally, regardless of age, great grandchildren of those grandparents come last.
However, if a person is not married, does not have children, parents, siblings, uncles and aunts, or grandparents and grandchildren, the next of kin includes any relative entitled to share in the intestate estate of the decedent (i.e., without a will). Civil and adopted relatives will count. Civil and adopted relatives include, for example, a stepchild, stepsibling, and step parents.
You may have questions about issues that may affect the priority order of next of kin. For example, marital status may be called into question if the spouse was living with another person. If the spouse and children were divorced from each other, and both remarried, the new spouses also come into the picture.
The delay in obtaining appointments for guardianship is often an issue. An Initial Hearing may be set within a week or so, but the Final Hearing may not be for two months or more, depending on the jurisdiction. If a person would qualify as guardian by virtue of the hierarchy of next of kin statute, that person can be appointed to make health care decisions.
Generally, the above order is applied after consent to making health care decisions has been granted in writing to the next of kin. Conversely, the order can also be used to override consent provided by the patient to another person. It is not uncommon to override consent provided by the patient to the spouse or relative by giving consent to a second relative in the hierarchy. Odessa Jones has practiced law for more than 25 years. Ms. Jones is listed in the Best Lawyers in America in the area of Trusts and Estates. She is an active member of the Milwaukee Bar Association and served as its President in 2012. She is also President of the Greater Milwaukee Foundation.
Rights and Obligations of Next of Kin
In the state of Wisconsin, next of kin are closest relatives of a deceased person, such as a child, sibling, or parent and for living people, the term broadly refers to a person’s closest family relationship. For individuals who have a current, signed medical power of attorney, next of kin includes them but only in relation to the documents at hand. Next of kin may be given the right to make decisions on behalf of their next of kin in certain circumstances. This includes making medical decisions, administering estate matters, settling issues after the death of a loved one, and determining funeral arrangements.
Anytime there are medical decisions to be made, Wisconsin legally recognizes a hierarchy of medically "next of kin." The list includes spouse, adult children, parents, adult siblings, and grandparents. If the patient is an adult and not married, the courts will generally favor the spouse first. However, if there is more than one spouse, the courts will then consider the spouse with the most priority, then adult children, then grandparents. If there are no adults, the courts will give priority to other relatives of the patient. In cases where a minor is being treated, doctors can discuss medical options with the parent(s) of the child.
In Wisconsin, people who are considered "minors" include those who are unfaqmilynto 17 years old. Those under the age of 18 cannot make medical decisions on behalf of themselves or anyone else under age 18 except their child. When it comes to minors, doctors who have reasonable belief that treatment is immediately necessary to prevent death, severe bodily injury, or serious illness of a minor may continue treatment without consent of the parent(s).
When it comes to probate and estate matters, and particularly handling the affairs of a decedent who has died without a will, a legally authorized personal representative should handle all challenges to a will. Before such a representative can take any action, they must be appointed by the probate court. Once approved, the court appoints the fiduciary, and they are responsible for disposing of the assets of a deceased person.
In the unfortunate event that you lose a loved one and have not yet made arrangements with a funeral home, your first step is to choose a licensed funeral director. While you are free to shop around at several local funeral homes, the person with the legal right to arrange your loved one’s final arrangements is first on that list. Next in line are grandparents, followed by adult siblings.
Contests and Legal Disputes with Next of Kin
Disputes can often arise between next of kin. For example, it is not uncommon for a next of kin to disagree with the decedent’s wishes as expressed in their will. Similarly, a person may have disagreements with their sibling or other relative concerning inheritance rights or property division following the death of a parent or other loved one.
The law in Wisconsin does allow for legal action to be taken against family members who may be unfairly exerting influence over a parent or loved one in opposition to the best interests of the parent or relative. Frequently, these disputes are sorted out in the probate court system with regard to contested legal claims and objections raised over the baselines for things like the will of the decedent.
How to Properly Name an Alternate Next of Kin
In circumstances where the default next of kin provision may be problematic, such as with estranged family or situations where family is not desired, it is possible to empower an alternative. This can be accomplished through a power of attorney for health care, living will, or other advance planning document. Sometimes called surrogate decision-makers or surrogate health care agents, these individuals are authorized to make health care decisions on behalf of an individual.
The Wisconsin Next of Kin Act also references the ability of an individual to designate someone other than themselves as their next of kin. However , the statute does not give any details on how to designate a non-relative as a next of kin. It is the author’s opinion this was a legislative oversight that should be corrected in the next legislative session.
In the interim, a power of attorney for health care form is a legally permissible instrument for designating an individual as one’s next of kin. This document could be drafted as a general power of attorney for health care, or as a medical power of attorney, living will or a combination thereof.
Guidance and Legal Tools for Understanding Next of Kin
Resources and Legal Assistance for Navigating Next of Kin Laws in Wisconsin
Several resources are available to help individuals who are trying to navigate Wisconsin’s laws regarding next of kin. You can work with an estate planning attorney for guidance on the laws and what they mean for your situation.
Some helpful resources include:
Legal Aid
Wisconsin has several legal aid services that can provide information and assistance on next-of-kin and conservatorship matters:
Kenosha County Legal Aid Society, Inc.
1419 63rd St.
Ste. B
Kenosha, WI 53143
Tel: 262-658-2100
Website: www.kenosalaw.com
Wisconsin Judicare, Inc.
2100 N. Kings Ave., Ste. 100
Appleton, WI 54914
Tel: 715-849-7465
Website: www.judicare.org
University of Wisconsin Law School – Frank J. Remington Center
975 Bascom Mall, Rm. 7118
Madison, WI 53706
Tel: 608-263-3752
Website: www.law.wisc.edu
Wisconsin Senior Helpline
Tel: 1-877-886-2372
Website: www.sharpnet.org
National Academy of Elder Law Attorneys
Website: www.naela.com
The Badger Chapter of the Alzheimer’s Association
Tel: 800-272-3900
Website: www.alz.org
Wisconsin Coalition for Advocacy
Tel: 608-267-5985
Website: www.wcfl.org
There are also online tools you can use to learn more about different aspects of next-of-kin issues, including:
Wills, Powers of Attorney and Other Estate Planning and Administration Forms
As you plan your future and the future of your assets, consider whether there are certain next of kin designations that you want to make. For example, if you have not already set up a health care power of attorney, it is a good idea to have in place. This document ensures that there is someone authorized to make medical decisions for you in the event that you reach a point where you can no longer do so yourself.
In addition to your health care power of attorney, you might also consider creating documents such as a will, a durable power of attorney, a living will and a survivorship marital property agreement.
Conclusion: Preparation and Legal Safeguards
Concluded thusly: Understanding Wisconsin Next Of Kin Laws: A Comprehensive Guide
Much like any other matter in the realm of legal analysis, understanding which relatives hold next-of-kin responsibilities is not always as clear cut as simply implementing a will. As such, it’s imperative you and your family are familiar with Wisconsin next of kin laws to ensure you and your loved ones are adequately prepared to deal with the death of a family member. When an individual dies, determining who among their surviving close family members holds next-of-kin responsibilities can create chaos should there be a lack of understanding . This could be particularly problematic if one of your family members is held responsible for the completion of a number of complex legal obligations, especially if they’re not up to the task.
As such, it is critical that all families ensure that their members – including not only next of kin, but those who may have power of attorney, living wills, and other directives – are aware of Wisconsin’s next-of-kin laws. Understanding the laws regarding next of kin will make sure your family is prepared to deal with an unexpected loss.