Beyond The Will, Client Compass

Learning From Famous Mistakes: Part 4 – Dying While Divorcing

January 16, 2020


Pop culture periodicals have been telling us for years that celebrities are “just like us” – they go grocery shopping, they drive their kids to school, they walk their dogs. This holds just as true in the Probate world as in the tasks of everyday life. This multi-part series will examine several famous mistakes that celebrities have made in their Wills and Trusts, and will offer tips as to how we can avoid making those same mistakes.

Part 4. Dying While Divorcing

In a prior installment of “Learning from Famous Mistakes”, we talked about celebrities with outdated estate plans that failed to account for changes in their life circumstances. In an interesting twist on that subject, this post will focus on one celebrity’s attempt to update his estate plan to account for one particular change in circumstance – a pending divorce – and his (probable) lack of success.

By September of 2019, when Cars frontman Ric Ocasek died of heart disease at age 75, he had been separated from his wife, model Paulina Porizkova for about a year and a half, and the two were in the process of divorcing. Perhaps presciently, Ocasek had updated his Will less than a month prior to his death, including specific reference to the pending divorce and further noting that, even if he were to die before the divorce became final (which he did), Porizkova should be entitled to none of his assets, as she had “abandoned” him. Setting aside, for now, whether Porizkova could be found to have abandoned Ocasek despite the fact that she was the one who discovered his body the day he died (this may be a material fact under New York law, where Ocasek died, but not necessarily applicable in Massachusetts), the Ocasek story highlights an intersection of divorce and probate law that brings great uncertainty and potential unfairness – the problem of death while divorcing.

If you die while in the midst of divorce proceedings, you are still legally married, and your estranged spouse still has statutory rights to your assets, including:

  1. “Exempt Property” – The surviving spouse may receive up to $10,000 of household furniture, automobiles, furnishings, appliances, and personal effects.
  2. “Discretionary Family Allowance” – The surviving spouse may receive, as a lump sum or in multiple installments, a “reasonable” allowance for support of him/herself and any dependent children, while the Estate is being administered. The Personal Representative of the Estate may authorize a lump sum of up to $18,000, or periodic installments of up to $1,500 per month; and the Probate Court, in appropriate circumstances, may authorize payments in excess of those amounts.

Additional statutory rights come in two forms, with one set of rights applicable if you die without a Will, and another if you die with a Will that attempts to provide little or nothing for your spouse.

If you die without a Will, your estranged spouse will have rights to his/her “intestate share” of your assets. Exactly what that means will vary from situation to situation (depending, for example, if you also left surviving children, and if so, whether those children are shared with your spouse or are from another relationship), but may result in your spouse inheriting 100% of your assets outright.

If you die with a Will (including a Will that you executed while your divorce was pending or in contemplation of same), and if the Will provides little or nothing for your spouse, he or she may claim a “spousal elective share” of your assets. Rather than accepting any benefit (or lack thereof) provided for him or her in your Will, your surviving spouse may “elect against the Will” and receive what the statute provides instead. Massachusetts law currently provides a spousal elective share equal to $25,000 outright, and a “life interest” in one-third of all remaining property, both real and personal (as with intestacy laws, there are some variations to this, depending on family circumstances).

In some instances, application of either intestacy laws or the spousal elective share may result in the surviving spouse receiving less than he or she would have received in the divorce, and in others, the surviving spouse may receive much more. In either case, particularly in the event of an elective-share and its “life interest” element, significant complexity is added to the administration of the Estate.

There are some strategies that may work to avoid the unfortunate application of either intestacy laws or the spousal elective share in the event of death while divorcing. A valid prenuptial agreement or postnuptial agreement may trump the surviving spouse’s statutory rights. In situations where either or both spouses is/are age 65 or older, a “speedy trial” may be requested to expedite the divorce. In some cases, a Motion to Bifurcate may be helpful, such that the parties are adjudicated “divorced” (terminating their statutory rights in the event of death) while putting off the support and property division aspects of the case to a later date. With all of this, the assistance of experienced counsel is critical, in particular, an attorney with a solid background in both probate and divorce matters.

Until next time!


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