7 FAM 200 Appendix D
IDENTIFYING NEXT OF KIN OR LEGAL REPRESENTATIVE
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 210 appendix d INTRODUCTION
(CT:CON-683; 10-13-2016)
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 CA/OCS/L (ASK-OCS-L@state.gov).
7 FAM 220 APPENDIX D DEGREES OF KINSHIP
- UNIFORM PROBATE CODE
(CT:CON-683; 10-13-2016)
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
(CT:CON-683; 10-13-2016)
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
decedents 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:
(1) Spouse;
(2) Children;
(3) Parents;
(4) Siblings;
(5) Grandparents;
(6) Aunts, Uncles; and
(7) Cousins.
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 childrens surviving parent could
exercise the childrens rights regarding decision making on disposition of the
decedents 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
(CT:CON-683; 10-13-2016)
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
(CT:CON-683; 10-13-2016)
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 CA/OCS/L (ASK-OCS-L@state.gov).
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 CA/OCS/L (ASK-OCS-L@state.gov)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.
f. 7 FAM 1300
Appendix C Name Usage and Name Change, specifically 7 FAM 1343
Appendix C, paragraph d(2) Note includes a
chart summarizing foreign countries that recognize same-sex marriage.
7 FAM 260
APPENDIX D CIVIL UNIONS AND OTHER
PARTNERSHIPS BETWEEN UNMARRIED INDIVIDUALS
(CT:CON-683; 10-13-2016)
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 CA/OCS/L (ASK-OCS-L@state.gov
).
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 CA/OCS/L (ASK-OCS-L@state.gov), including what documentation
is required to establish domestic partnership.
7 FAM 270 APPENDIX
D LEGAL REPRESENTATIVE
(CT:CON-683; 10-13-2016)
If a person dies abroad leaving a will, living will, or
advance directive, those instruments may designate the decedents legal representative,
executor or trustee responsible for carrying out last wishes as expressed in
those instruments.
7 FAM 280
Appendix D Unassigned