Who's gonna drive you home?
December 1, 2021 | View PDF
Many of our Senior Voice readers will remember Ric Ocasek. He was the lead singer of a band called The Cars which had quite a few hits in the late 70s and early 80s. And if you were paying attention to pop culture in that time frame, you might also remember Paulina Porizkova, a supermodel who graced the cover of Sports Illustrated.
Did you know they were married? This is their story. At least a little piece of it.
Ric and Paulina met while filming the video for the song “Drive”. You might remember it; it was a fairly ground-breaking video at a time when most music vids were pretty rudimentary. She played the young woman who appears to be having a mental breakdown in the video. Eventually Ric and Paulina were married, and remained so until his death.
Except it wasn’t quite that easy. Before Ric died, at the age of 75, they had filed for divorce. No decree of divorce had actually been granted; if you know anything about divorce cases, you know that it can sometimes be several years between a complaint being filed, and the divorce decree being signed by a judge. During that time, the parties are still, legally speaking, a married couple.
In the meantime, Ric and Paulina were still living together. I suppose when you have a $10 million home, you can probably find room for both of you. But maybe not enough room; she was the one who found his lifeless body one day in 2019. He had various heart problems and was recovering from surgery at the time.
Here’s the problem: As many estranged spouses do, Ric had rewritten his will during this same-house separation, to disinherit Paulina.
But you can’t completely disinherit your spouse.
Every state has laws which prevent people from disinheriting a spouse. You can disinherit your kids, your parents, your significant other, your best friend’s girl, or anybody else you don’t like, but a spouse has some very specific rights.
In Alaska there are several different statutes which prevent the disinheritance of the surviving spouse. The biggest one is the “spousal elective share” law. It gives a surviving spouse the right to at least one-third of the “augmented estate”, which means all of the assets of either husband or wife, added together.
For example, if the husband has $1.1 million in his name, and the wife has $400,000 in her name, the augmented estate is $1.5 million. A third of that would be $500,000. So if he dies with a will which attempts to leave the entire estate to someone else, she can still pick up another $100,000 to get her up to that one-third. If she already has more than a third of the assets, she doesn’t get anything more through this particular law (she wouldn’t get less, though).
Ric and Paulina weren’t living in Alaska, of course, but New York has a similar law. Paulina recently announced that she has settled with the estate, and that they have given her what she understands she is entitled to. In an interview she referred to it as being a third, so New York’s law must be fairly similar to ours.
So what are the takeaways, for those of us who are not former supermodels married to former rock stars?
First of all, the will still matters. One-third is a lot less than half, let alone the entire estate. Imagine a long-time marriage in which the assets were mostly in the husband’s name, and then he dies without having updated his old will. His widow might have received his entire estate if he updated the will, but now she might only get a third.
Or to change the facts a bit, imagine this was a late-in-life marriage in which the husband had already earned a lot of money, and has children from a prior marriage, but the husband doesn’t have a will at all. He might have wanted his children to have received most of his assets, but now the lion’s share is going to go to the surviving spouse under the “intestacy law”. She won’t be worried about the spousal elective share law; she’ll get way more than a third.
Is there any way to get around the spousal elective share? Sometimes. A properly drawn prenuptial agreement can waive that right. And if the spouse doesn’t claim the elective share within a certain period of time, she can’t claim it later. But generally speaking, no, the surviving spouse is entitled to at least that one third, regardless. You can do a living trust, designate beneficiaries on accounts, do anything else you want, and the spouse still gets to claim a third.
After all, as Paulina Porizkova might have said, it’s “just what I needed”.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. And then let the good times roll.