It was a classic 1980s love story. He was a rock singer. She was a supermodel. They got married. The 1980s seemed like they were full of such stories—as well as the stories of the eventual divorces. But Ric Ocazek and Paulina Porizkova appeared to beat the odds, with their marriage enduring not only the 1980s, but the 1990s and 2000s as well.
By 2018, though, Mr. Ocazek and Ms. Porizkova were headed toward divorce. According to Forbes, they filed for divorce in May of 2018 and were still in middle of court proceedings when Mr. Ocazek passed away in September 2019. The twist is that, shortly before his death, the singer had updated his will, and the changes now highlight the little-known rules governing elective shares.
What is an elective share?
Elective share laws make it difficult for people to disinherit their spouses and domestic partners. Even if they’re explicitly written out of a will, as Ms. Porizkova was, spouses may still be entitled inherit whatever the law dictates is their share of the estate. In New Jersey, the elective share is equal to one-third of the estate’s value after certain debts and expenses are deducted.
Can you prevent someone from receiving an elective share?
Yes. New Jersey says that for spouses and domestic partners to be eligible for elective shares they must be:
- Not living apart in separate housing; and
- Living as a married couple.
New Jersey law provides two different ways couples may have stopped living together as a married couple:
- Due to a divorce; or
- Due to “circumstances which would have given rise to a cause of action for divorce.”
In other words, had his estate been in New Jersey, the fact that Mr. Ocazek had been in the middle of divorce proceedings could have supported his decision to exclude Ms. Porizkova from his will.
Does that mean Ms. Porizkova doesn’t stand to receive her elective share?
Not necessarily. Elective shares are governed by state law, meaning that Ocazek’s estate is subject to New York law, where he resided and where they had filed for divorce. There, the law allows people to disinherit their spouses in cases of abandonment, as is explicitly claimed in Mr. Ocazek’s will.
However, if Ms. Porizkova chooses to challenge the assertion, it will be up to a probate judge to decide if she truly had abandoned the singer. As Forbes says, this means Ms. Porizkova’s social media posts about shared “Sunday morning coffee” might influence whether she is entitled to her elective share.
The bottom line
In New York, as in New Jersey, a spouse’s elective share is worth one-third of the estate. Since Mr. Ocazek’s estate is estimated to be at least $5.1 million, Ms. Porizkova’s elective share could be worth as much as $1.7 million.