On September 15, 2019, Ric Ocasek, singer, songwriter, and guitarist of The Cars, died in his Manhattan residence.  He was found that morning by his wife, Paulina Porizkova, a supermodel and celebrity in her own right, as she brought him his coffee.  Ric was survived by six sons—two from his relationship with Paulina and four from previous marriages.  Ric’s probate estate is valued at about $5.1 million, which appears to be a shockingly low number based on Ric’s commercial success.  Ric’s probate estate does not, however, include property passing outside of Ric’s probate estate such as property owned with rights of survivorship, property with a named beneficiary like insurance policies or POD bank accounts, or property already transferred during Ric’s life.  It is likely that Ric was well-advised and transferred significant assets during his life using trusts or other wealth transfer tools.  

Although Ric and Paulina had been married since 1989, the couple had been separated for some time, perhaps since 2017.  Paulina had filed for divorce, but the divorce had not become final prior to Ric’s death.  On August 28, 2019, mere weeks before his death, Ric executed a new will nominating his “friend and business manager,” Mario Testani, as his personal representative.  Ric’s will stated, “Even if I should die before our divorce is final . . . Paulina is not entitled to any elective share . . . because she has abandoned me.”  Moreover, Ric specifically provided that two of his six sons would not receive an inheritance from him. 

So what do Ric’s statements about Paulina and his sons mean for Mario?  An appointed personal representative steps into the shoes of the decedent and becomes party to any lawsuit brought against or on behalf of the decedent.  In Ric’s case, that means that Mario will step into Ric’s shoes in both the divorce case filed before Ric’s death and the probate case filed post-death.  Mario, as fiduciary of the estate, will be charged with making decisions in both lawsuits which will likely be consolidated into a single proceeding because a deceased person cannot get divorced. 

In most states, a surviving spouse is entitled to an “elective share” of the decedent’s estate to guard against a surviving spouse being totally cut out of a decedent’s will.  In New York, as in Utah, a surviving spouse is generally entitled to inherit one-third of the decedent’s estate rather than whatever the decedent left to the surviving spouse through his will.  Likewise, in New York and Utah a married couple is not divorced until the divorce is final.  Upon the death of one of the parties to the divorce proceeding, the proceeding is terminated and the status of the parties reverts to what it was immediately prior to the filing of the divorce proceedings.  That is, unless the divorce is final, the surviving member of the couple will be the decedent’s “surviving spouse” regardless of any separation or attempted divorce. 

Ric’s inclusion of language in his will concerning abandonment by Paulina was ostensibly an effort to avail himself of an exception to the elective share under New York law despite their continued marriage at the time of death.  If Paulina had “abandoned” Ric, then she is not treated as his surviving spouse and is not entitled to claim the elective share.  Utah does not have such an “abandonment” exception to a surviving spouse’s claiming of the elective share.  Determining whether Paulina had abandoned Ric will almost certainly be the first contest Mario will have to navigate, but it won’t be the last.

In addition to the fight over whether Paulina is entitled to claim the elective share, Mario is likely to face additional challenges to Ric’s will by, at least, the two of Ric’s sons that were excluded as takers of Ric’s estate.  In the absence of a will, Ric’s estate would be shared by his surviving spouse and all of his six children, in various portions.  Because of the size of his estate and the proximity of his executing a new will prior to his death, Ric’s excluded sons may choose to challenge Ric’s probated will as invalid or as not properly expressing Ric’s desires concerning his property at death.

This probate case is barely getting started.  Several interested parties have filed an appearance in New York County’s Surrogate’s Court, including Paulina and the two disinherited sons.  Although, so far, each of those parties is merely obtaining information about the estate, Mario would do well to stay alert in the driver’s seat as challenges to Ric’s will likely get the green light.