Who Is Considered Next of Kin in Illinois? Inheritance, Medical, and Burial

Illinois has no single definition of next of kin in Illinois law. The state uses four different priority lists depending on what is at stake: inheriting from someone who died without a will, making medical decisions for an incapacitated patient, arranging a funeral and burial, or filing a wrongful death claim. Each list starts with the closest family and works outward, but the rankings and the rights attached to them differ. A relative who ranks first to make medical decisions may not rank first to inherit property.

Who Counts as Family to Begin With

Two threshold rules apply across every list below. A civil union partner is treated identically to a spouse everywhere Illinois law uses the words “spouse,” “next of kin,” “family,” or “marriage,” under the Illinois Religious Freedom and Civil Union Act.¹ Wherever a priority list says “spouse,” read it to include a civil union partner.

Adopted children and adoptive parents hold the same position as biological children and parents. The Wrongful Death Act states this directly, and the same principle carries through inheritance, medical surrogacy, and burial rights.²

Next of Kin for Inheritance

When a person dies without a will, the Illinois Probate Act controls who inherits. The statute moves through tiers, and each tier inherits only if no one in the tier above survives.

If the decedent left both a spouse and descendants (children, grandchildren, and so on), the spouse takes half the estate and the descendants split the other half.³ A spouse with no descendants inherits everything. Descendants with no surviving spouse inherit everything.

With neither a spouse nor descendants, the estate passes down the following order:

Parents and siblings share equally. A surviving parent takes a double share when the other parent has died. If a sibling died before the decedent, that sibling’s children step into the sibling’s place.³
Grandparents and their descendants come next. The estate splits in half between the maternal and paternal sides. Each half goes to the grandparents on that side, or to their descendants if the grandparents have died. If one side has no surviving members, the other side takes the whole estate.
Great-grandparents and their descendants follow the same half-and-half pattern.
If no one in those tiers survives, the estate goes to the decedent’s nearest kindred, determined by counting degrees of relationship under civil law rules.

When no living relative can be found, the estate escheats. Real estate goes to the county where it sits. Personal property located in Illinois goes to the county where the decedent lived. All other personal property goes to the State Treasurer.⁴

Descendants Born Outside of Marriage

A separate Probate Act provision governs inheritance when the decedent was born outside of marriage. The general spouse and descendant rules still apply, but distribution beyond that level flows only through the “eligible parent” line. If only one parent qualifies as an eligible parent, the estate passes through that parent’s side alone, with the eligible parent taking half and that parent’s descendants splitting the other half.⁵

Next of Kin for Medical Decisions

When a patient cannot make their own medical decisions and has no healthcare power of attorney, the Health Care Surrogate Act applies. The attending physician identifies the highest-ranking available person on this list, and that person becomes the surrogate:

Guardian of the person (a court-appointed guardian).
Spouse or civil union partner.
Any adult child of the patient.
Either parent of the patient.
Any adult sibling of the patient.
Any adult grandchild of the patient.
A close friend of the patient.
Guardian of the estate (the person managing the patient’s financial affairs).

⁶

Illinois is one of the states that allows a non-relative to serve as a medical surrogate. The “close friend” position matters for patients estranged from family or whose closest relationships lie outside the bloodline. A close friend ranks below adult grandchildren but above the guardian of the estate.

Next of Kin for Funeral and Burial Decisions

Control over the body after death follows the priority list in Illinois’s Disposition of Remains Act. The person at the top holds both the right and the financial responsibility to arrange the funeral or burial.

A person named in a written designation that meets the Act’s requirements. The designation can be a standalone document or part of a healthcare power of attorney.
The executor or legal representative of the estate, but only if the will contains written burial or disposition instructions.
The surviving spouse.
A majority of the surviving adult children. If fewer than half want to act and the rest cannot be located, those children can proceed after reasonable efforts to notify the others, as long as no majority opposes them.
The surviving parents. If one parent cannot be found after reasonable efforts, the other can act alone.
The next closest adult relatives by degree of kinship, with majority rule when several share the same degree.

⁷

When no family member is available, a recognized religious or civic organization can step in and assume both the legal and financial responsibility. For indigent individuals or those with no one willing to act, a public administrator, coroner, or medical examiner handles the arrangements.⁷

Next of Kin in Wrongful Death Claims

When someone dies because of another person’s negligence or wrongful act, the personal representative of the estate files the lawsuit, acting on behalf of the surviving spouse and next of kin rather than on their own behalf.²

A wrongful death recovery is not divided by the fixed shares used for inheritance. The court distributes the award based on each surviving family member’s degree of financial dependency on the person who died. A child who was fully supported by the decedent may receive a larger proportion than a sibling who was financially independent. The result can look quite different from what the same family would receive through intestate succession.²

If no surviving spouse or next of kin exists, the recovery is limited to actual expenses: hospital and medical costs (capped at $450 each) plus estate administration costs and attorney fees.²

When Multiple People Share the Same Rank

Disagreements usually arise when two or more relatives sit at the same tier. On medical decisions, Illinois does not require consensus or majority vote at the family level. The attending physician identifies one person as the surrogate, and that person’s authority is not overridden by other relatives at the same tier who disagree. Clinicians follow the statutory hierarchy, document the designated surrogate in the chart, and note family disagreements rather than brokering a compromise. Funeral decisions, by contrast, build majority rule directly into the statute at the children and distant-relative tiers, so the group must count heads before acting.

1
Illinois General Assembly. Illinois Code 750 ILCS 75 – Illinois Religious Freedom and Civil Union Act
2
Illinois General Assembly. Illinois Code 740 ILCS 180/2 – Wrongful Death Act
3
Justia Law. Illinois Code 755 ILCS 5 Article II – Descent and Distribution
4
Illinois General Assembly. Illinois Code 755 ILCS 5/2-1 – Rules of Descent and Distribution
5
Illinois General Assembly. Illinois Code 755 ILCS 5/2-2 – Children Born Out of Wedlock
6
Illinois General Assembly. Illinois Code 755 ILCS 40/25 – Surrogate Decision Making
7
Justia Law. Illinois Code 755 ILCS 65 – Disposition of Remains Act