Ric Ocasek’s Will: Abandonment As Bar To Elective Share

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Ric Ocasek, the front man of The Cars ( “Just What I Needed” and “Since You’re Gone”) and hit producer (albums from No Doubt and Weezer’s “Blue” album), passed away in September 2019.  Ric Ocasek’s will is making headlines.  It is reported that not only does Ocasek’s will disinherit his surviving spouse, but it states that she “abandoned” Ocasek and should not be entitled to an elective share.  The “abandonment” language in the will sets the stage for probate litigation.  Why? Because abandonment can bar a surviving spouse’s right to an elective share.

Surviving Spouse’s Right To An Elective Share Under New York Law

Ocasek died married to Paulina Porizkova, the Sports Illustrated swimsuit model.  The marriage lasted roughly 30 years.  Ocasek and Porizkova were in the middle of divorce proceedings at the time of Ocasek’s death, but were legally married and still living in the same home when Ocasek passed away.

Because they were legally married, Porizkova is Ric Ocasek’s surviving spouse under New York Law.  As the surviving spouse, Porizkova is entitled to certain rights and benefits, which you can read about here.

Among the rights of a surviving spouse in New York is the right to take an elective share.  The elective share is available when the surviving spouse timely elects to take against the Decedent’s will.  Basically, a surviving spouse has the right to override the terms of the decedent’s will and receive the greater of $50,000 or one-third of the “net estate.”

Ric Ocasek’s Will Raises Abandonment As A Bar To The Elective Share

The “abandonment” language in Ric Ocasek’s will is important.  Under New York law, a surviving spouse’s right to an elective share can be lost if the spouse is found to have “abandoned” the decedent. The abandonment must have continued until the time of death.

However, abandonment is tough to prove.  In Estate of Riefberg, the New York Court of Appeals stated:

It is axiomatic that, to challenge a spouse’s right of election on this account, more must be shown than a mere departure from the marital abode and a consequent living separate and apart (e.g., Matter of Maiden, 284 NY 429; Matter of Rose, 15 AD2d 983). Sensitive to the reality that marital partnerships, no matter how knowingly entered upon “for better or for worse”, still run the range of conflicts common to all human relationships, the law has long required that one who seeks to impose such a forfeiture must, in addition, establish, as in an action for separation, that the abandonment was unjustified and without the consent of the other spouse.

Given the initial reports that Ocasek and Porizkova were still living together, and Porizkova was bringing Ocasek coffee when she discovered Ocasek’s body, the case for abandonment, if pursued, will be challenging.  Porizkova never left the marital home, and was caring for Ocasek on some level, as evidenced by the simple gesture of bringing him morning coffee.

However, with the abandonment language in Ric Ocasek’s will, and the directive that Porizkova not be entitled to the elective share, the stage is certainly set for probate litigation, and will be closely followed by New York probate attorneys and probate attorneys around the United States.

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