7 FAM 200 Appendix D
IDENTIFYING NEXT OF KIN OR LEGAL REPRESENTATIVE
(Office of Origin: CA/OCS)
7 FAM 210 appendix d INTRODUCTION
a. The term next of kin (NOK), frequently used in consular work to reflect the family member to be notified in the event of the death of a U.S. citizen abroad is more commonly understood to refer to U.S. state laws regarding descent and distribution for intestate succession – when a person dies without a will. By most legislated definitions, a spouse is not a NOK in the sense that they have no genetic degree of kinship. The Department therefore generally uses the terms surviving spouse, next of kin, or legal representative when instructing consular officers who to notify in the event of the death of a U.S. citizen abroad. However, consular offices should remain cognizant that common usage often treats the surviving spouse as the NOK.
b. If a person dies leaving a will, advanced directive or similar instrument, he or she may have made specific provisions recognized under the laws of the state of residence regarding disposition of remains and the estate.
c. The individual may also have designated a legal representative to make arrangements for disposition of remains and the estate in the event of his or her death.
d. Many deaths of U.S. citizens abroad occur unexpectedly, and unless the person resided in the foreign country, there may be little or no documentation to assist the consular officer in determining who is the legal next of kin (surviving spouse, legal representative).
e. If local (foreign) host country law recognizes a person as NOK (e.g., a distant local relative) who would not be recognized as such under U.S. law (e.g., where there is a surviving spouse or closer relative in degree of kinship), consular officers should consult the Bureau of Consular Affairs, Directorate of Overseas Citizens Services (CA/OCS) for guidance on whether it is appropriate to make representations to the host government or how the family may pursue the matter through local legal channels.
f. Assuming there is no NOK, surviving spouse, or legal representative present in the foreign country, the Department generally looks first to the decedent's passport application(s) to see if the decedent designated a person to be contacted in the event of an emergency. More recent passport applications can be viewed by posts abroad using the American Citizen Records Query (ACRQ) or PIERS system (Passport Issuance Electronic Records System). For older passports, CA/OCS/ACS can request retrieval of the manual record.
g. Of course, passports are valid for ten years for adults, so it is possible that even if the decedent did list a person to be notified in the event of an emergency, the contact information may no longer be valid.
h. If the deceased registered in the Smart Traveler Enrollment Program (STEP), the registration may contain information useful to finding the NOK as might papers found on the deceased.
i. The Internet provides a variety of resources to assist in locating next of kin. CA/OCS's Office of American Citizen Service and Crisis Management (CA/OCS/ACS) has access to specific Lexis/Nexis and other web based tools to help in this regard. Telephone directory assistance may also be helpful.
j. Questions regarding identification of NOK, surviving spouses, legal representatives and related matters should be directed to L/CA.
7 FAM 220 APPENDIX D DEGREES OF KINSHIP - UNIFORM PROBATE CODE
Article II of the Uniform Probate Code pertains to intestate succession and wills. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in state law, except as modified by the decedent's will. The Uniform Probate Code (UPC) has been adopted, at least in part, by 18 states (See the Uniform Law Commission page). (See state laws regarding descent and distribution.)
7 FAM 230 APPENDIX D DISPUTING FAMILIES
a. One of the sensitive aspects of death and estate consular work is trying to assist families whose members have opposing views as to what should be done regarding disposition of remains and personal effects. This subject is discussed at length in 7 FAM 290 concerning estates.
b. Disposition of remains is not generally addressed in U.S. state or foreign law. As a matter of customary law or custom, the surviving spouse, closest relative or legal representative makes the determination, absent a specific provision in the decedent’s will or other legal instrument.
c. Degrees of Kinship: The degree of kinship is established by the number of generations, and each generation is called a degree. The general descent and distribution provisions for a person who dies without a will are:
(6) Aunts, Uncles; and
d. There are several scenarios in which the consular officer may find him/herself between family factions:
(1) If a person dies intestate, is divorced and is survived by children who are minors, the children’s surviving parent could exercise the children’s rights regarding decision making on disposition of the decedent’s remains and estate;
(2) If a person dies unmarried, intestate and is survived by adult children who do not agree about disposition of the remains and estate;
(3) If a person dies unmarried, intestate and is survived by parents who do not agree about disposition of the remains and estate; or
(4) If a person dies unmarried, intestate and is survived by siblings who do not agree about disposition of the remains and estate.
7 FAM 240 Appendix d sIMULTANEOUS DEATH ACT
Article II of the Uniform Probate Code provides that an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. This is also the standard set forth in the Uniform Simultaneous Death Act. (See the Uniform Law Commission page.)
7 FAM 250 APPENDIX d surviving spouse
a. On June 26, 2013, the U.S. Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Persons whom the Department previously may not have recognized as legal spouses for purposes of federal laws and regulations because they were part of a same-sex marriage now may be recognized and name changes adjudicated accordingly. (Windsor v. United States, 570 U.S. __. 133 S. Ct. 2884 (2013).
b. On June 26, 2015, the Supreme Court held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State (Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2589 (2015))
c. It is no longer necessary to refer to the laws of the state of celebration to determine whether a same-sex marriage performed in the United States will be recognized.
d. Consular officers should afford spouses dignity and respect. If there are multiple spouses and there is a question regarding either disposition of remains or distribution of personal effects, consult L/CA.
e. If local (foreign) host country law does not recognize a person as a surviving spouse (e.g., where the foreign country does not recognize same-sex marriages), consular officers should consult your CA/OCS/ACS country officer and L/CA for guidance on whether it is appropriate to make representations to the host government or how the spouse may pursue the matter through local legal channels.
7 FAM 260 APPENDIX D CIVIL UNIONS AND OTHER PARTNERSHIPS BETWEEN UNMARRIED INDIVIDUALS
a. A partner of the deceased who was in a civil union or similar arrangement recognized by a U.S. jurisdiction (e.g., registered partners, reciprocal partners, domestic partners) will be treated the same as a “spouse” for purposes of disposition of the personal estate under this FAM chapter, subject to applicable state law.
b. An unmarried partner of the deceased who has not entered into a civil union or similar arrangement recognized by a U.S. jurisdiction may still exercise rights over the deceased and the estate if he or she has been designated as a legal representative of the deceased, such as through a will, living will, or other advance directive, consistent with 7 FAM 260 Appendix D below.
c. Foreign governments may question U.S. law on this subject, particularly regarding advance directives and living wills which are not commonly accepted in many countries. Such questions should be forwarded to L/CA.
d. Consular Officers should generally follow state laws regarding rights and responsibilities for the disposition of remains based upon the residency of the decedent, including those referenced above. Questions about this subject should be addressed to L/CA, including what documentation is required to establish domestic partnership.
7 FAM 270 APPENDIX D LEGAL REPRESENTATIVE
If a person dies abroad leaving a will, living will, or advance directive, those instruments may designate the decedent’s legal representative, executor or trustee responsible for carrying out last wishes as expressed in those instruments.
7 FAM 280 Appendix D Unassigned