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Who Decides? State Laws Vary on Next of Kin


When someone dies, especially when they pass away unexpectedly, there are several reasons that make it important to understand just who their legal next of kin is, especially if they die without leaving behind written instructions. 

Next of kin means the closest relative, but how that’s determined is a legal matter that’s defined by state law, not your own family history. 

These laws vary state by state and are often most relevant to those who died without a will, also called Intestacy. These complexities play out in dividing up the person’s estate and probate.  

But even before property is divided, the next of kin (abbreviated as NOK) is the person who is authorized to make funeral arrangements for their family member’s disposition (i.e. burial, cremation or other method) and must sign paperwork and do it relatively quickly. Another option takes place when the legal next of kin gives up their right in writing and allows another person to handle the task. 

These laws generally rank the surviving spouse as the first person in the next of kin hierarchy. Note this information is not intended as legal advice, and you should always consult a lawyer if your situation is complex, confusing, or contentious. 

Funeral professionals often see confusion from family members around funeral decision-making legalities. For example, some people sign documents as both an agent and a witness, which automatically invalidates them. Others think paperwork that gives them power of attorney for financial matters gives them the legal right to make funeral decisions (it does not) or similarly, that health care planning documents or a will suffices. If documents are improperly executed or don’t specifically mention funeral care, they are not valid. That’s often when the NOK hierarchy is used.

To avoid all these potential headaches, a funeral professional can make advance planning arrangements to streamline the process.

California’s Funeral Laws 

In California, if you write down your wishes, you rise to the top of the state’s hierarchy for making funeral decisions, and the second on the list is your “agent” if you appoint one before death. Then the list continues with California’s next of kin order, starting with the spouse. Determining who can decide what happens to your remains depends on your specific life circumstances (relationships, living relatives, military service, etc.). If your adult children are deciding on your disposition, a majority must agree. 

Who Has the Right to Make Funeral Arrangements in California? 

  • You, if you have made your wishes known in writing or signed a contract with a provider. 
  • Your health care agent, a representative named in a valid advanced health care  
  • directive (AHCD) or durable power of attorney (DPOA) for health care.  
  • Your spouse or state-registered domestic partner 
  • Your adult children, or a majority if you have more than one over 18. 
  • Your parents  
  • Your sibling(s) 
  • Other family (aunts, uncles, nieces, nephews, cousins) 
  • Appointed conservator, a court-appointed guardian 
  • Public administrator, name If none of the above apply 

California does not recognize Common Law Marriage but does recognize registered domestic partners. To register your domestic partnership, California has both in-person and mail-in options.


Failure to Act 

Whoever is your designated next of kin, they have a limited time to decide what should happen to you after death. Under state law, if the person designated in the hierarchy of kinship is unable 

or unwilling to act, their rights to control disposition expire after notification: 

  • Spouses have ten days to act before their rights expire. 
  • All others have seven days to act before their rights expire. 

Who Has the Right to Make Funeral Arrangements in Colorado? 

In Colorado, like many of the other states we researched here, you can name someone in a “declaration instrument” before your death so they can take charge of your funeral arrangements. In Colorado, if you are legally separated, your surviving spouse is no longer the person to make choices for you. The state’s hierarchy is as follows: 

  • A person you name before your death 
  • A personal representative or special administrator of your estate if one has been appointed 
  • Your surviving spouse, unless legally separated 
  • A person you have given the right to with a designated beneficiary agreement 
  • Your adult child or a majority of children if more than one 
  • Your parents 
  • Your siblings 
  • Another person willing to take on legal and financial responsibility for your disposition. 

Who Has the Right to Make Funeral Arrangements in Florida? 

In Florida, the state law determines who will be the legally authorized person to make decisions for you. The hierarchy is as follows: 

  • Yourself, if you left directions before your death 
  • Your surviving spouse (unless criminally responsible for your death) 
  • Your adult child or majority of children if more than one 
  • Your parents 
  • Your siblings 
  • Your grandchildren 
  • Your grandparents 
  • Other next of kin or guardian at the time of your death or personal representative, power of attorney, health care surrogate, public health officer, medical examiner or public administrator. 

Who Has the Right to Make Funeral Arrangements in Idaho? 

In Idaho, the hierarchy for decision-making is very similar to other states. One interesting aspect of Idaho law is that if the person is charged with murder or manslaughter of the deceased, they lose their rights, and the decision moves to the next place on the list. If they are acquitted, they can regain the right. 

  • A person who was named in a written document by the decedent  
  • A person who was acting as the durable power of attorney for health care, unless there is clear language denying that right 
  • A person who was acting as the durable power of attorney as long as there is clear language granting the right 
  • A spouse 
  • A majority of competent adult children 
  • Competent surviving parents 
  • A person nominated by a court as a representative 
  • A person who has been named in a will as a representative 
  • Other next of kin in succession order 
  • Those charged with murder or manslaughter of the deceased lose their rights and it moves to the next place on the list. 

Who Has the Right to Make Funeral Decisions in Minnesota? 

In Minnesota, if you were estranged from someone on the list, and there was only one person in that “class,” then the right passes to the next place on the hierarchy. 

  • A person you appoint in writing including a health care directive 
  • Your spouse 
  • Your adult children 
  • Your parents 
  • Your adult siblings 
  • Your adult grandchildren 
  • Your grandparents 
  • Your adult nieces or nephews 
  • Your guardian 
  • An adult who exhibited special care and concern for you 
  • Other next of kin 
  • A public or court authority. 

Who Has the Right to Make Funeral Arrangements in Nevada? 

According to Nevada law, the following hierarchy gives these loved ones power to decide your disposition. 

  • Someone you appointed with a legally valid document 
  • Your surviving spouse 
  • Your adult child 
  • Your parent 
  • Your adult sibling 
  • Your grandparent 
  • Your personal guardian or another adult who signs a legal form taking responsibility. 

Oregon and Washington Funeral Laws 

The rules in Oregon and Washington are very similar to each other and other states. But there is a difference in how the two states handle the wishes of adult children. In Washington, a majority of adult children must agree while in Oregon, one child may make decisions. Also, in Washington, if adult siblings are deciding, they must also have a majority. 

Who Has the Right to Make Funeral Arrangements in Oregon and Washington 

  1. You or another person you have named in a written, signed document 
  2. Your spouse  
  3. Your adult child a.Oregon: Only one child is required to make decisions. b.Washington: The majority of children must agree (if two, must be unanimous) 
  4. Your parents (in Washington, both living parents must agree even if divorced) 
  5. Your adult siblings (in Washington, a majority) 
  6. Your executors (as named in a will, if applicable) 
  7. Your grandchildren 
  8. Your grandparents 
  9. Your cousins and other kin 
  10. Anyone willing to come forward and sign. a. Oregon: After 10 days. b. Washington: After 90 days 

Note: Power of attorney, durable power of attorney, and a will do not directly grant rights to funeral arrangements unless stated explicitly with clear language. 

Who Has the Right to Make Funeral Arrangements in Wisconsin? 

In Wisconsin, the hierarchy is fairly similar to other states, but divorce proceedings can alter the role of your spouse. Here is the hierarchy in Badger State: 

  • Your named representative 
  • Your spouse, unless divorce proceedings were pending at the time of your death 
  • Your child or the majority of children if you have more than one 
  • Your parents 
  • Your sibling (or majority of siblings) 
  • Other next of kin 
  • Guardian if one was appointed to you 
  • Any person willing and able to do it. 

Domestic Partnerships and Common Law Marriages  

Most of the states we serve do not recognize common-law marriage. In fact, only a handful of states actually do. It is a common misperception that common law marriage happens automatically after a certain period of time. However, individuals can often assign a partner (or other competent adult) the legal control for disposition:   

  • In Oregon, only one next of kin (NOK) is needed to relinquish their rights 
  • Washington requires a majority of NOK 

Even though most states do not recognize common law marriage, individuals usually can sign paperwork before death to assign a specific person the right to make funeral arrangements. They can also register to become state-registered domestic partners. After death, a legally recognized next of kin may also reassign this right by signing paperwork. 


Choosing Another Representative 

According to the Funeral Consumer’s Alliance, many states allow you to choose another person as your representative to guide your wishes when you die. This is particularly important if you are estranged from your next of kin. According to the legal website,, you can use a form like this one from Oregon or create your own. Military members should put their choices on this form, the site explains. 

Also, the person who is your next of kin may want to relinquish their right to make decisions for you. This is done in writing. 


Plan Ahead to Avoid Next of Kin Confusion 

Like much of our advice around end-of-life planning, it is best to decide your final plans for yourself and take the burden off the others in your life. Just like a will or advance directive, you need to put your wishes in writing, be explicit, and store them in an easy-to-locate location with your other planning documents. Prepaid cremation arrangements are simple to make, affordable, and can play an important role in your end-of-life planning. Tulip Cremation offers 100% remote arrangements, with a 24/7 Care Team and transparent pricing, so you pay only for the services you need.