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What happens to your NY estate if you die before your divorce is finalized? NY estate law and the right of election; Estate of Ocasek

12
Nov

By Jason Stern

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When 75 year old hall of fame front man for The Cars, Ric Ocasek passed away in his $15 million dollar Gramercy Park townhome on September 15, 2019 he was in the midst of a divorce from third wife Paulina Porizkova. Ocasek founded the revolutionary band The Cars in 1978 ushering in a new sound and with it the age of New Wave music. Ocasek would inspire a host of bands who expanded on his music for decades to come.  Ocasek also produced albums for artists such as No Doubt and Weezer. 

In 1989 Ocasek married his third wife supermodel Paulina Porizkova on the island of St. Barth’s in the French Caribbean.  The two met while shooting a music video for his best selling song Drive.  Of Ocasek’s 6 children he shared two sons, Jonathan and Oliver with estranged wife Paulina.  It is estimated that Ocasek’s gross NY estate, including probatable and non-probatable assets, could be valued between $20 -$40 million dollars. 

Ocasek’s estranged wife Paulina Porizkova herself earned $42 million dollars during her successful career as a supermodel under a lucrative contract with Este Lauder spanning two decades.  Prior to his passing Ocasek had been suffering from a debilitating form of arterial sclerosis, heart disease.  In fact, at the time of his passing he was recuperating from an invasive surgery to correct the condition.  

Two weeks prior to his passing Ocasek enlisted his NY estate lawyer to draft a will excluding his then estranged spouse, supermodel Paulina Porizkova from inheriting any portion of his NY estate. Ocasek’s NY will specifically reads, “I make no provision for my wife Paulina Porizkova as we are in the process of divorcing.  Even if I should die before our divorce is final, Paulina is not entitled to any elective share because she has abandoned me.”

Can your NY will exclude your estranged spouse from your NY estate before your divorce is final?   

As an experienced Queens NY estate lawyer with two decades of experience I can tell you that unless you have either a properly executed prenuptial or postnuptial agreement in effect the answer is no.  You cannot have your Queens estate lawyer draft a NY will completely disinheriting your spouse from you NY estate because of something called the spousal right of election.

Pursuant to EPTL §5-1.1 of the NY estate law, your surviving spouse may not be disinherited and is entitled to their spousal right of election of one-third of any and all testamentary substitutes and gross estate assets within your NY estate.  As such, EPTL §5-1.1(a)(e)(2) does not permit spouses to completely disinherit each other in their NY estates absent a validly executed contract waiving said right of election in the form of prenuptial or postnuptial agreements. This is the unique area of law where the NY estate law intersects with Domestic Relations Law §236(b)(3) permitting prenuptial agreements to circumvent the spousal right of election for inheritance purposes.  Therefore, as recently stated by the New York State Appellate Court in Matter of Koegel, 160 A.D.3d 11 (2ndDept. 2018), absent such a validly executed agreement waiving the spousal right of inheritance, a surviving spouse is entitled to one-third of all assets in their spouse’s gross estate.   

The NY Spousal Right of Election includes estate assets both probatable, solely in the decedent’s name at the time of their death AND non-probatable assets, assets that are jointly held or in trust for beneficiaries.  Any NY will drafted by your Queens estate lawyer omitting a spouse is inviting if not guaranteeing a NY will contest proceeding.  As such, as long as the surviving spouse can prove that he or she was validly married to the decedent at the time of their spouse’s passing, their NY will contest will succeed and the surviving spouse would receive their 33% elective spousal share when timely asserted. 

Unfortunately NY estate law makes no provision for wills executed on behalf of those testators who are in the middle or even near the end of NY divorce proceedings.  As such, unless you are legally divorced, the NY estate law provides that spouses, even those who are estranged, receive their NY right of election One Third (1/3) portion of any and all assets within NY estates, absent effective prenuptial or postnuptial agreements.  While it remains to be seen in this case whether Paulina Porizkova will exercise her elective share of her late husband’s NY estate she would be well within her rights to do so.  

If you think you or a loved one may have been wrongly excluded from a loved one’s will it never hurts to ask the opinion of an experienced Queens estate lawyer to see what rights you may have under the NY estate law.  Feel free to call the knowledgeable Queens estate lawyers at The Law Offices of Jason W. Stern & Associates for a free NY estate law consultation at (718) 261-2444. Our Queens estate lawyers have nearly 60 years of combined Queens estate law experience drafting, probating and challenging wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Richmond, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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