An Overview of Oregon’s Next of Kin Laws
Next of kin refers to those persons who stand in a certain relationship to a deceased person and who have a special claim to the possession, custody or control of the remains of the deceased. ORS 97.130 defines "next of kin" as follows:
(a) Wife or husband;
(b) Surviving registered domestic partner;
(c) Child or biological child;
(d) Parent;
(e) Sibling or brother or sister of a whole or half blood;
(f) Grandparent;
(g) Grandchild or grandchild through adoption;
(h) Uncle or aunt , or an uncle or aunt by marriage;
(i) Nephew or niece;
(j) Great-grandparent or great-grandchild through adoption; or
(k) Great uncle or great aunt, or great uncle or great aunt by marriage.
Of course sometimes the person who has passed away will have no surviving next of kin. In this circumstance the Oregon Anatomical Education Board, which was created to regulate the distribution of human remains for the purpose of medical education, can be contacted at 503-229-5869.
Next of Kin Legal Rights in Oregon
Next of kin in Oregon have certain rights and responsibilities under the law. It is important for next of kin to know what these rights and duties are. This section focuses primarily on the right to information for medical purposes, the right to decide medical and financial issues for an incapacitated patient, and the right to inheritance proceeds when someone dies intestate.
Under Oregon law, doctors and hospitals must provide pertinent medical information to a patient’s next of kin and any other individuals the patient has authorized. See ORS 192.517. This provision of the law is part of Oregon’s Medical Records Privacy Act, which governs the release of medical records in general. For example, the information provided to next of kin may include general prognosis and treatment plan as well as information about the patient’s advance directives (such as a living will or health care power of attorney). The intent is to make sure in a medical emergency that relatives, competent health care proxies, and appointed personal representatives have information necessary to make informed decisions.
If a person is incapacitated and unable to make his or her own decisions regarding medical and financial matters, then the next of kin (as well as individuals who have health care powers of attorney and agents under advance directives) have the legal authority to make decisions for the patient. See ORS 127.635. These powers include the authority to consent to medical treatment or to appoint another decision maker to do so, to take custody of the patient and arrange for appropriate care, and to pay for care and treatments. Of course, most of these decisions will be made in consultation with the patient’s doctors and with other family members, and the law does not allow for unreasonable treatment options.
As a related issue, the authority to act on behalf of a deceased person’s estate passes to the personal representative (as executor or administrator of an intestate estate). See ORS 113.085. So if the next of kin includes the decedent’s spouse, children, and parents, they will have the right to inherit under intestacy laws and, if a person has died intestate (i.e., without a will), to serve as the personal representative. If the next of kin include the spouse, children, and parents of the decedent, terms of his or her will can be respected to the extent possible. If the next of kin is a cohabitant and the decedent had a will, the cohabitant’s inheritance will be determined by the terms of that will. If the decedent had no will, the next of kin will inherit under the state laws. Importantly, the increase to the estate value from the deceased spouse’s share of retirement and pension accounts and life insurance proceeds will be excluded from the estate from which the next of kin will inherit. See ORS 112.035(7). And of course, all debts of the deceased person against which the estate is liable must also be satisfied.
The Order of Priority: Who is Top of the List?
At the top of the list are spouses and domestic partners. Oregon law clearly defines a spouse as a person to whom the decedent was married at the time of death. Domestic partners are defined as the same-sex or opposite-sex partners that have filed a Declaration of Domestic Partnership with the Secretary of State, or have been issued a certificate of registration for a Domestic Partnership. Once these relationships have been established, spouses and domestic partners are entitled to priority consideration in the appointment of a personal representative.
Next in order of priority are children, parents, siblings, and other descendants. This group includes competent persons who are 18 years of age or older, and the decedent’s Children, parent, or siblings, or any person legally entitled to the custody of the decedent’s Children. Relationships such as grandchildren, aunt, uncle, niece, nephew, and cousins fall into this category.
The next priority group consists of stepchildren. The person having priority and who is a stepchild of the decedent may nominate another person to be appointed as personal representative, or the person itself may petition for appointment.
The fourth category includes several groups: 1) eligible grandparents, 2) individual grandchildren of the decedent, 3) the guardian of the decedent’s estate, and 4) creditors of the estate or the estate itself.
Next of Kin and Estate Distribution
When the estate of a deceased person is being probated in Oregon, it is always necessary to know who the next of kin are, especially when there is no will. Unless a person has a will, his estate will pass to his heirs as determined by the laws of the state of the deceased domicile at the time of death. Absent living parents and children, persons in the classes nearest in kinship inherit in equal shares.
Who inherits your estate in Oregon when you die without a will? The classification of heirs is from nearest to farthest in the line of relationship. Therefore, if the deceased has children, the children will receive inheritances before parents receive any inheritance. Parents are next in line. After parents come grandchildren, then great-grandchildren. The next group of relatives are the parents’ siblings and their descendants.
The intestate succession statutes start with children and work back. Only if there are no children, parents, or grandchildren are aunts, uncles and cousins in line to inherit.
Generally, all lineal descendants share equally in the inheritance. Thus, if you have four children, your estate will be divided into four equal shares with each child receiving a share of one-fourth of the estate.
The only way to break up that one-fourth interest is by representation among grandchildren. If, for example, a child pre-deceases the decedent leaving two children, then those children would take their pre-deceased parent’s share together. So in our previous example, if you had three children and one pre-deceased you, then the share of ¼ of the estate going to that deceased child would be split between the decedent’s grandchildren, with each grandchild getting 1/8.
Medical & Funeral Decision Making for Next of Kin
When it comes to medical decisions, a surviving family member has first priority as a patient’s "default decision maker." The Uniform Health Care Advance Directives Act (ORS 127.505 to 127.660) generally provides that an individual has authority to make health care decisions for another individual when the individual is "unable to communicate health care decisions to health care providers." ORS 127.505(2). If individuals are named in an advance directive, or if a patient has appointed a representative via a power of attorney, those representatives have first priority.
If the patient does not have an advance directive or power of attorney, however, a spouse or domestic partner will have authority unless there are circumstances demonstrating that the individual is not in need of such authority, is not reasonably available to act, or is not suitable or competent to act as the individual’s representative. ORS 127.535. An adult child follows a spouse as the "default" decision maker, with similar limitations . The order of authority continues with designated parents, adult siblings, other relatives, and the Department of Human Services until a suitable representative is located. ORS 127.540 (spouse); ORS 127.545 (adult children); ORS 127.550 (parents); ORS 127.555 (adult siblings); and ORS 127.557 (relatives); and ORS 127.560 (DHS). The statute also provides a process for a third party to petition the court to be appointed on behalf of a patient as a health care representative. ORS 127.562.
While the next of kin has a priority right to make medical decisions and other arrangements, legally binding the funds can be a challenge. ORS 127.660(1) provides that an agent under a valid advance directive may authorize the use of autopsy procedures or organ donation without obligation to show a right to the property of the principal. A health care representative authorized by a court has corresponding authority under ORS 127.537, and a guardian may authorize an autopsy under ORS 125.325. In the absence of these situations, however, the law does not address authority to bind an estate for funeral expenses.
Dispute Remedies among Next of Kin
The death or incapacity of a family member often brings latent conflicts among next of kin to the surface and compounded with grief, emotional scars can be devastating. This is particularly true when conflicts arise regarding the decedent’s or protected person’s estate and last wishes, or when a family or surrogate decision-maker’s judgment in care and treatment decisions is called into question. While the Court recognizes the reality that there are often conflicts within families, the Court (and for that matter the laws themselves) generally will not get involved with these conflicts unless those conflicts are public in nature, or are a threat to a person’s health or safety. Oregon has adopted a specific statutory scheme (ORS 125.800) to govern actions brought by the Oregon Attorney General to resolve disputes arising from judicially accepted surrogate decision-makers. The process is called a "dispute resolution proceeding" and may be commenced by any interested person. Specifically, the Attorney General may commence an action to resolve a dispute among: In many cases under ORS 125.800, the dispute is resolved before the Oregon Attorney General takes any action—a result that avoids a lengthy legal battle between family members. Once the dispute comes under Court control, however, it is difficult to avoid confrontation. In Section 125.800 of the Oregon Revised Statutes, the "dispute" among family members is described in fairly broad terms: "(1) If the court has appointed a guardian under ORS 125.300 or 125.600, or a conservator under ORS 125.405, 125.615 or 125.625 for a protected person, that protected person, or any person interested in the welfare of a protected person or the person’s property, or the guardian or conservator may petition the court to resolve a dispute concerning any of the following: (a) [Surrogate decision-making](Oral Health Services for Persons With Disabilities) (b) Consenting to marriage (c) Divorce (d) Adoption (e) Removal of a barrier to return to a foreign country (f) In-home services provided by a local governmental unit (g) Notifying persons of the death of a protected person (h) Selecting a funeral director (I) Disposing of remains (j) Removing a natural barrier to return to a foreign country (k) Burial or cremation (l) Transplantation of an organ or tissue, as described in ORS 448.300 (m) Training or education (n) Rehabilitation (2) The Attorney General may initiate an action described in subsection (1) of this section on behalf of the protected person, ward, conservator or guardian where the Attorney General believes the action is in the best interest of the protected person, ward or person affected by the issue in dispute." It is unclear whether the Oregon Attorney General has the resources available to put the "fight" out family conflicts pertaining to medical decisions or disposition of remains. Aside from the Attorney General, the Oregon Legislature noted that any interested person may file a petition to resolve a dispute with the probate court, and the court may appoint a Lawyer Referee to determine the merits of the dispute, gather information, assist with settlement proceedings, or make recommendations to the court (ORS 125.806). See ORS 125.804 for a complete list of the district court’s powers to determine the outcome of a dispute. The above-referenced list represents some of the issues which the Oregon common law has already addressed. As drafters of legislation discover other decisions of statewide importance, they may informally request consideration by the Oregon Legislature. In recent years, they have lent consideration to revisiting the agency laws, and the rights and responsibilities of surrogate decision-makers who may be unable to fulfill their duties as circumstances change. If you are aware of an issue or dispute which needs clarification, let your state delegate or representative know about it. A more formal approach may be found with the Oregon Law Commission.
Revocation of Next of Kin Designation
An individual can, in certain instances, change their next of kin designations. There are only a limited number of circumstances where an individual may alter or remove the designation of an appointed next of kin. For example, one may wish to change his or her next of kin for the following reasons: If an individual should wish to change their next of kin, they must complete a Declaration of Revocation of Agent, which is then signed in front of the relevant witness(es). It is important to note that once an individual revokes the appointment of their agent, the individual will be wholly responsible for making any decisions concerning their care and wellbeing, with no right of access to additional information from third parties, should third parties discover the Declaration of Revocation has been completed.
Next of Kin FAQs
Who is considered next of kin in Oregon?
In Oregon, the next of kin are family members who have priority for making medical decisions for a patient who is unable to communicate their wishes. The term next of kin typically refers to someone’s closest living relative – usually a spouse or parent. Most Americans quickly identify a spouse as the top priority for making medical decisions. There are specific laws in Oregon regarding who qualifies as next of kin if no spouse is available.
In Oregon, the next in line are adult children, if there is no spouse. If there is a spouse but they are not legally married, the spouse also ranks below the patient’s children. If a patient has no living spouse or children, their medical rights go to their parents.
What is the responsibility of next of kin?
Oregon law allows the next of kin to make medical decisions on behalf of an individual who is unable to do so themselves. Next of kin may be asked to make health care decisions only when a patient is incapacitated and unable to communicate their wishes about treatment. Next of kin may be asked to consent to or refuse medical treatment on behalf of a patient. In severe cases, next of kin may receive and approve a Do Not Resuscitate Order (DNRO).
Next of kin also has the right to visit a patient and share medical information about their loved one with staff. They can help decide which family members can visit a patient, and under what conditions.
What does next of kin mean in probate court?
In probate court, next of kin refers to the closest living relative of a deceased person. Next of kin must be notified of a decedent’s probate case or estate until the matter is resolved. Next of kin also have a right to appear in court and make changes to a Will or request to become the administrator of the estate . Finally, next of kin is entitled to inherit the estate, depending on the property and debt situation, if there is no Will.
What happens if a patient’s next of kin disagree about medical decisions?
If a patient has multiple next of kin, confusion can ensue regarding who has the authority to make medical decisions. It is important to help medical staff by naming a healthcare proxy. The proxy is a one person that you legally elect to represent your medical wishes. Other next of kin cannot make medical decisions without your proxy’s approval. While your next of kin may disagree, medical staff will only discuss your health status and treatment plan with your elected proxy.
If multiple family members are trying to be the decision-maker for a patient, it is up to the healthcare provider to choose which family member they feel is the best qualified. Oregon law outlines the hierarchy for who can be named the decision-maker instead of the patient. Oregon law allows a reasonable effort for the provider to speak with the following relatives:
What does not apply to Oregon’s next of kin laws?
Next of kin laws in Oregon do not apply to the following situations:
Under Oregon law, only the fiduciary agent may file for guardianship, conservatorship, or a change of name. Fiduciary agents must use a special form with 12 specific sections, with instructions for submitting the information to the court.
What happens when authority is gained through next of kin?
Oregon prioritizes individuals who have the legal or practical authority to make medical decisions for an incapacitated individual. Individuals who are the legal guardian or conservator can take actions on the incapacitated individual’s behalf. Types of authority gained through next of kin includes: