When people refer to “cousins”, in a way that covers a variety of relationships. For family and social purposes there isn’t much difference between first cousins, second cousins and “cousins once removed. But for legal purposes when inheritances are involved, there are big differences. The distinctions arise in two particular situations:
- When a person dies without a Will (also called intestacy) and the closest relatives are cousins.
- When a Will is being offered for probate and the Court has to decide who is entitled to notice, which are people who might have intestacy inheritance rights if the Will were not good.
For cousins to be in play, the decedent would have to die without spouse, children, grandchildren, parents, siblings, nieces/nephews. Aunts/uncles (if any) would inherit, along with first cousins, but aunts/uncles knock out their own children in this scenario.
When discussing cousin inheritance rights, it is crucial to define the terms:
First cousin – The intestacy statute doesn’t use the word “cousin”. It refers to first cousins as “children of common grandparents”. Here’s paragraph 6 of the New York intestacy statute (EPTL sec 4-1.a.6): After talking about the prior inheriting classes (spouse, children, parents siblings/nieces nephews), the next inheriting class is… “one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents,or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.”
The first hundred or so times I read this it seemed confusing, but if you think about it, how else could you define a cousin? True first cousins share a common grandparent. That’s it. Most people can think of clear examples in their own family…”Grandma Anna’s brother (Uncle Joe) had a son Bobby, who is your first cousin Bobby.”
Second cousin – At the end of the first cousins section of the statute (paragraph 6) it says: “….issue of grandparents shall not include issue more remote than grandchildren of such grandparents”. So, a sometimes startling fact: “second cousins to a decedent do NOT have inheritance rights in New York.” Second cousins, which many of us have and know (and call them cousins) share a common great-grandparent. The reason we often know them fairly well is that their parent and ours were first cousins (because THEY shared a common grandparent). But, legally such people are second cousins to each other and don’t inherit under intestacy in New York.
What is a “First cousin once removed” – What if your first cousin Bobby has previously died and he had a daughter Jane (who you always called cousin Jane). She is not a first cousin. A child of a first cousin is called a “first cousin once removed” because they are a generation below. If you want a brain-bending experience there is a paragraph 7 after the paragraph 6 stated above. The paragraph refers to “great grandchildren of grandparents”, and as I’ve thought about this over the years, it DOES define it better than any other way it could be defined. These folks only have inheritance rights in limited situations. The only time first cousins once removed can inherit is if there is nobody at the level of first cousin on either side of the decedent’s family. This wasn’t totally clear in the statute, but was resolved in an interesting case called “Matter of Shumavon” https://casetext.com/case/matter-of-shumavon The bottom line for that case is “first cousins on one side of the tree inherit ahead of first cousins once removed on both sides of the tree”. Believe it or not, this actually comes up fairly often!
One more thing about cousin cases. When first cousins might be inheriting, we have to look at the decedent’s maternal and paternal first cousins. Most people have cousins on both their mother’s and father’s side, and by law the inheritance is 50/50 to each side. So, if there are two paternal cousins and ten maternal cousins, 50% is shared by the two paternals and 50% is shared by the ten maternals.
Very often the people inheriting as cousins under intestacy were not close (in the personal sense) to the decedent. Or, one cousin was actually close and thirty others weren’t but they are forced to share equally. This illustrates something that occurs to me at some point of every cousins case, which is “This person should have made a Will”!!