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 [email protected].