Above The Law January 8, 2020
As
anticipated, Paulina Porizkov, wife of Cars rocker, Ric Ocasek has filed a
Right of Election claim against the deceased’s estate in New York County
Surrogate’s Court.
Porizkov
and Ocasek were married for 30 years, but allegedly separated when she
discovered him dead, in his Manhattan home on September 15, 2019.
Ocasek’s
purported Last Will and Testament is dated August 28, 2019 and it leaves no
provision for Porizkov or two sons, Christopher and Adam from his marriage to Constance
Campbell. Ocaseks other children including Porzikov’s sons are included in the
Last Will.
Although
the Last Will recognizes that Porizkov and the testator were not legally
divorced at the writing of the Last Will, it states that she is not left anything
and that should Ocasek die before a divorce is finalized, his wife would not be
not entitled the elective share. He alleges that she abandoned him.
Probate
laws vary from state to state. The theory of a spousal Right of Election is
that a disinherited spouse can make a claim, usually to the fiduciary of the
decedent’s estate, as to for the statutorily defined amount for which the
spouse is entitled.
For
example, in the State of New York, the surviving spouse may receive the greater
of $50,000 or one-third (1/3) of the deceased spouse’s net estate. This means
that even if you hate your spouse, have not spoken to your spouse, or your last
will gives all of your asset to your children or charities, your spouse can
take a share.
The
share is not limited to what passes through probate. When calculating the
elective share the law takes into account all assets including life insurance
policies, annuities, real properties and other financial interests regardless
of their titling. A defense to the elective share is abandonment, that is that
the spouse left the decedent and is therefore not entitled to her share.
Sometimes
in this kind of proceeding, a surviving spouse must prove that she was actually
married to the decedent. At times an estate executor will reject the right of
election claim alleging that the right to elect against the estate had been
waived in a previously executed legal document.
Ocasek’s
Last Will and Testament leaves provisions for the children he and Porizkov
share together. Besides wanting to provide for one’s children, this planning
technique places the surviving parent against her children.
If the
slighted spouse elects against the Estate and succeeds, her share will be paid
from her the other beneficiary’s, including her own children’s cut. The
children will see less than what the testator intended for them, not to mention
the significant legal fees that the Estate will incur as a result of litigating
the matter. At times, this may act as a deterrent so that the spouse does not
elect. Other times, it fuels the fire.
Ocasek
had six children, two from each of his three marriages. It has been reported
that the disinherited sons are investigating the Last Will and Testament and
gathering information with regard to the Estate. Many times beneficiaries are
left assets outside of probate, for example an account left in trust or a life
insurance policy. Other times, a disinherited beneficiary may look into the
validity of the last will and testament.
Upon
one’s passing, despite the substance of the last will and testament, the
decedent’s next-of-kin will be notified so that they may have the opportunity
to inquire and ultimately object to the last will. Objections may include
testamentary capacity, undue influence, the due execution of the last will and
testament and an allegation that the last will was procured under fraud.
In
order to decide whether or not to file an objection to a last will and
testament, depending on the state, one may depose witnesses and the attorney
draftsperson, review medical documents and other documents related to the
decedent.
Although
Ocasek has only been deceased for a few months, his Estate is ripe for
litigation on multiple fronts. In instances where there are children from
different families, estrangement, divorce, separation and of course, fame, it
is imperative be thoughtful when executing an estate plan.
Writing
one’s last will should be the impetus to tie up any loose ends and to
concretize the status of familial relationships so that the matter does not
erupt upon one’s passing. In will and right of election proceedings, the main
witness, the one with all of the answers, cannot be questioned. This silence is
perhaps more disheartening than any inequity in the disposition of assets.
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.
No comments:
Post a Comment