Ric Ocasek Photo by Frazer Harrison/Getty Images)
You might think you can disinherit your spouse, but the law holds otherwise. American rock band The Cars singer Ric Ocasek passed away on September 15, 2019, as a resident of Manhattan. While technically married for 30 years to model Paulina Porizkov, the two were allegedly estranged upon his passing.
The couple separated in 2018 but never legally divorced. In the eyes of the law, they were still married upon his demise and Porizkov is legally the surviving spouse. Porizkov and Ocasek have two sons together and according to her, they were in close contact at the time of his passing.
Ocasek’s purported Last Will and Testament is dated August 28, 2019. The impetus for the Last Will and Testament is likely a surgery he underwent at that time. Porizkov claims to have helped him recuperate following the surgery. As such, she contests the allegations made in his Last Will that she abandoned him. Ironically, it is Porizkov who discovered him dead in his New York home.
The Last Will and Testament states that no provision has been made for Porizkov, who married Ocasek in 1989 after first meeting him during the filming of the 1984 video for famous Cars song, Drive. Ocasek acknowledges that the couple was not legally divorced and further states that should he die before a divorce is finalized, Porizkov is not entitled to any elective share on the grounds of abandonment.
The estate is valued at approximately $5 million in copyright assets in addition to $15,000 in cash and $100,000 in tangible personal property. It is possible that Ocasek had assets that passed outside of the Last Will and Testament if such assets had named beneficiaries or were held jointly, like an insurance policy or a trust.
The Right of Election is the statutorily prescribed share of a decedent’s estate that the surviving spouse can petition the court, within a specific time period, to grant. In the State of New York, under E.P.T.L. Section 5-1.1A, the surviving spouse may receive the greater of $50,000 or one-third (1/3) of the deceased spouse’s net estate. The Right of Election arises when a spouse is disinherited from a decedent’s estate plan, by accident or purposefully. Even though the Last Will specifically states that Porizkov is disinherited, she still retains the right to file and pursue her Right of Election in the Surrogate’s Court. The executor of the Last Will and Testament will then have an opportunity to accept or reject the claim, which may result in litigation between the executor and the survivng spouse. Sometimes, the beneficiaries of the Last Will and Testament are the surviving spouse’s own children with the decedent, pitting parent against child. Ocasek’s Last Will and Testament leaves provisions for the children he and Porizkov share together.
It is important to note that when calculating the Right of Election, the law takes into account all of the decedent’s assets, not just those passing through probate. It is possible that a surviving spouse may not receive anything under a Last Will and Testament, but has a significant life insurance policy due to her or perhaps some real estate. If the Right of Election is deemed valid, the claim will be paid like any other claim against the estate which results in less for the named beneficiaries.
It seems that Ocasek was anticipating a challenge from Porizkov, as he references her “abandonment” in his Last Will and Testament. Abandonment is a defense against the Right of Election. In this case, the executor can reject the Right of Election claim and try and demonstrate that the spouse abandoned him. Other defenses includes waivers of the Right of Election which are sometimes included in pre- and post-nuptial agreements, especially for second and third marriages. Proving that a marriage was invalid from the start is another way to defeat the Right of Election. Needless to say, if you kill your spouse, the Right of Election will not be honored.
Ocasek’s case illustrates the issues involving divorce and estate planning. Often divorces take many years to complete and parties die during the interim. Ocasek appears to have preempted a challenge by Porizkov by anticipating a Right of Election claim. Porizkov has immediately responded with the news of her disinheritance by claiming her devotion and participation in Ocasek’s care. This case is a prime example of the peculiarity of divorce litigation that continues following the death of a litigant. The venue changes to Surrogate’s Court and a new party, the executor, is charged with fighting the surviving spouse about personal matters he likely knows little about.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.