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By John R. Merlino Jr. Esq.
Founding Attorney

Q: What is the spouse’s Right of Election?

New York and New Jersey estate planning attorneys are watching with interest as details of the estate plan of Cars front man, Ric Ocasek, come to light. Ocasek was discovered dead in his bed on September 15, 2019 by his wife of 28 years, former supermodel, Paulina Porizkova. The couple has two sons together and Ocasek has four other sons.

Reportedly, the couple was married in 1989 but “announced their separation” in 2018. According to social media posts by Porizkova, the couple “peacefully separated for the past year”. Reportedly, they continued living together in his Manhattan townhouse.

The 75-year-old singer died at home while recuperating from recent surgery and reportedly updated his will less than a month before he died, leaving Porizkova and two of his other sons out of his will. The two sons he shares with Porizkova were not excluded. Cutting a spouse and children out of your will—especially shortly before dying—can make the estate administration more vulnerable to contests or challenges.

Can you disinherit your spouse in New York

In New York, and in most states and most instances, you cannot disinherit your spouse. Unless waived (as in a prenuptial agreement), a surviving spouse retains what is called a “right of election”. If a spouse is left out of the will or given a nominal share, they can exercise with the court their right to receive an elective share of the estate.

State laws differ, but the elective share in New York State is the greater of $50,000 or 1/3 of the net estate. If not exercised timely, the right may be lost, so interested spouses must not delay. Porizkova has reportedly filed papers with the court exercising her right of election.

Depending on the state, there are certain circumstances where the spouse’s right of election can be defeated–including abandonment. If a couple gets divorced, the right of election is extinguished when the divorce is final. But Porizkova and Ocasek were still legally married at the time of his death. If the estate can prove Porizkova abandoned him, it may be able to defeat her right of election claim.

Contact Our Estate Planning Attorneys Today

If you need help with an estate plan or have questions regarding an estate administration, the attorneys at Merlino & Gonzalez can help you. Contact us today to schedule a consultation.

From our offices in Staten Island, New York, and East Brunswick, New Jersey, we represent clients in both states in all aspects of estate planning and estate administration.

About the Author
John is a fierce advocate and the office guru for problem-solving and brainstorming. He guides clients through every stage of a real estate transaction from offer to contract, navigating through nerve-shattering home inspection and title clearance concerns, maintaining constant contact with lenders, conducting the actual closing, and continuing to advise clients with regard to any post-closing concerns.  John brings a practical and fair-minded approach to the process which has earned him the respect of his clients and peers.