We can learn a lot sometimes from legal cases involving celebrities. Musician Ric Ocasek, who achieved his greatest notoriety in the 1980s with his band The Cars and who died in 2019, is one such example. His case offers a clear example of how you, as a Floridian, can benefit from completing your divorce promptly or, perhaps even more beneficially, from executing a prenuptial or post-nuptial agreement with your spouse. If you have a large amount of wealth, the difference between doing these things and not doing these things can be millions of dollars. To make sure that your wealth will continue to go where you want it to, even as you contemplate an upcoming marriage or an upcoming divorce, be sure to rely upon an experienced Florida divorce attorney.
In 2018, Ocasek’s wife, model Paulina Porizkova, announced that she and Ocasek had separated in 2017. In September 2019, Ocasek died of natural causes. At the time, he and Porizkova remained married. Later last year, news reports indicated that Ocasek had excluded Porizkova from his will. The will stated that the pair were “in the process of divorcing” and that Porizkova was not entitled to anything from his estate “because she has abandoned me,” according to People.com. Ocasek’s estate included $5 million just in copyrights.
Ocasek died in New York City and his probate estate will not be administered in Florida. However, for many people, especially people with high dollar estates, it is very important to look at a case like Ocasek’s and understand the impact of a divorce on your probate estate. The Florida Statutes have something called a “spousal share” for surviving spouses. That law says that, if your spouse survives you, she can “elect” to receive 30% of your estate, regardless of what your estate planning documents say. (That’s true even if your documents expressly say she should receive nothing.)
You are completely free to disinherit your ex-spouse, but a surviving spouse cannot receive nothing unless she killed you, or the marriage was procured through fraud, duress or undue influence. That’s generally true even if you and your spouse are separated and living apart, and have been apart for an extended period of time.
So, as you can see, there is a dramatic difference between how the law in Florida will treat your ex-spouse as opposed to how the law treats your estranged spouse.
What does all that mean for you?
If you’ve decided that your marriage is broken and truly cannot be saved, you should proceed with completing the divorce process swiftly and without delay. The finality of divorce may be emotionally painful but, if the marriage is irretrievable, it is best (both emotionally and financially) to complete your divorce quickly, obtain closure and protect your assets.
Also, you should be careful if you want to provide financially for your ex-spouse-to-be. While some people divorce in order to sever all ties with their spouse, some couples divorce but remain close friends. Some in that latter group may want to provide for their ex-spouse in the event of their death, even after the divorce. Don’t rely solely on what you put in the estate planning documents you signed when the marriage was still intact to accomplish that.
Florida law says that, absent clear instructions to the contrary, any provision benefiting a spouse in a will is ignored if the couple divorces before the will is administered in probate. So, if you want to provide for your ex, it is best to make sure that you have it in “black and white” somewhere else, such as putting it in your divorce settlement agreement.
What is also true is that, whenever possible, it is best to make decisions amicably and as a couple, as opposed to waiting for a divorce or death to trigger a prolonged and expensive adversarial process in the courts. For many couples, that pro-active step may mean a prenuptial or post-nuptial agreement. Not only can the two of you use such an agreement to address how assets should be distributed in the event of a divorce, you can also deal with this issue of the spousal elective share. Florida law says that a spouse-to-be is free, within the terms of a prenuptial agreement, to waive his/her statutory rights to take an elective share in the event of the other spouse’s death.
In other words, plan ahead when you can. Make decisions collaboratively as a couple where you can. When legal action like a divorce becomes necessary, act decisively and promptly. And, whether you are pursuing a prenuptial agreement, post-nuptial agreement, marital settlement agreement or a contested divorce, always count on the knowledgeable South Florida family law attorneys at Stok Kon + Braverman. Our attorneys are here to give you the thoughtful advice and diligent advocacy you and your family deserve.
Contact us online or by calling (954) 237-1777 to schedule your consultation and find out how this firm can help you.