Abandonment leads rocker to disinherit wife. That won't fly in Florida.

Rock'n’roll lost another icon on September 15 with the death of Ric Ocasek. The 75-year-old lead singer of The Cars died at his New York City townhouse from pulmonary and cardiac complications following surgery. Now, there are complications in his estate, too.

At the time of his passing Ocasek was separated but not divorced from his wife of 28 years, supermodel Paulina Porzikova. His will, signed just a month earlier, states: “I have made no provision for my wife Paulina Porzikova (“Paulina”) as we are in the process of divorcing. Even if I should die before our divorce is final … Paulina is not entitled to any elective share … because she has abandoned me.”

The word “abandonment” is key. In both New York State and in Florida, a surviving spouse is entitled to a one-third elective share of the deceased spouse’s estate. But while abandonment can be a legally valid basis for disinheriting a spouse in New York, that's not the case in Florida.

Following Ocasek’s passing, Porzikova pushed back on the notion that she had abandoned Ocasek, despite the ongoing divorce proceedings. She heaped lavish praise on him, calling him her “sun.” She noted that she was caring for him during his recuperation, had brought him cookies the night before his death, and was the one who discovered his body the next morning when she stopped to deliver coffee. She wrote on Instagram: “We still lived together… His death is the end of my world as I knew it.” The couple has two sons together.

Estimates of Ocasek’s estate, based on a list of assets filed with his will, include $100,000 in tangible personal property, just $15,000 in cash - but over $5 million in “copyright rights.” And that does not include whatever might be in trusts that are not publicly viewable. That is ample impetus for Porzikova to file suit and to pursue her elective share. That now appears likely to happen: In November, Porizkova hired a lawyer to represent her. The “abandonment” issue will surely figure prominently as the case proceeds.    

Florida residents who plan to marry are wise to remember that Florida makes it extraordinarily difficult to disinherit a spouse. It follows that if circumstances warrant it - for example, if you have children from a prior marriage or significant assets prior to a new marriage - you should consider obtaining a pre-marital waiver of elective share. A pending divorce or even what Ocasek describes as "abandonment" has no legal significance in Florida: your spouse remains your spouse, entitled to an elective share of your estate and to certain rights to homestead property, until the marriage is legally dissolved.

Social Media Becomes Evidence in Battle Over French Rocker's Estate

The family feud over the estate of rocker Johnny Hallyday - at least, the first battle in what figures to be a continuing war - has come to a close. And in a sign of the times, Hallyday's social media account has played a pivotal role. The situation makes clear an emerging reality: what we put online can catch up with us – even when we are gone!

Many Americans aren't familiar with Hallyday, although he's been a superstar in France for decades. Intrigued with American rock 'n roll from a young age, he rose to fame as the "French Elvis," selling over 100 million records during his career.

In December 2017 the 74-year-old Hallyday died of lung cancer. At his death he had lived in Los Angeles for approximately ten years with his fourth wife, Laeticia, and their two adopted daughters, Jade and Joy. As an expatriate, Hallyday had a long history of locking horns with French taxing authorities, stating in one interview that he might eventually consider returning to France – but only if it changed its tax laws.

The singer obtained his green card in 2014. That same year, he had a California lawyer draft his will. The will left everything to his widow Laeticia. It cut out his biological adult children from four prior marriages, none of whom reside in the U.S. You can do this in America, of course, where there is no legal obligation to leave anything to adult children. Not so in France. There, surviving children are automatically entitled to a piece of their parent's estate. 

Obviously, Hallyday's adult children were none too pleased that under American law, they were being disinherited. Their father's estate has been estimated at about $112 million, and consists of rights to his extensive music catalog, several homes, many luxury cars, and even the proceeds from a posthumously issued album that has already sold over a million copies.

Hallyday was mourned in France with all the pomp and circumstance befitting a national hero, including a funeral procession along the Champs-Elysees. Shortly thereafter, his adult children took their grievances to a French court. Laura Smet, 35, and David Hallyday, 52, argued that their father was not a bona fide resident of the U.S. They claimed his will was invalid and French law should prevail - which would make them automatic beneficiaries of his estate. Although wealthy in their own right, the adult children seem motivated beyond money. Smet had sorrowfully noted that under the U.S. will, she would not even inherit the signed sleeve of the album “Laura” that her father had recorded to celebrate her birth.

Hallyday’s and Laeticia's lawyers countered that because Hallyday had lived in the U.S. for over a decade and enrolled his children in school here, he was effectively a U.S. resident, and that U.S. law should prevail.

However, the lawyers for the French adult children had an ace up their sleeve – an online ace. With access to photos and dates from the Hallydays' public Instagram accounts, they were able to demonstrate to the court that from 2012 to 2017, Hallyday had spent more time on French soil than on American soil. This included time spent on St. Bart’s, a French island in the Caribbean, as well as the eight months he had been in France for medical treatment just prior to his death.

On May 28 a court in Nanterre handed the adult siblings a victory, ruling that their father's domicile was France, and French law prevailed. The court stated: "Up to the end he lived a bohemian and nomadic life, but above all a very French life that led him to live... usually in France." If the ruling stands, there are now five beneficiaries: the two adult children; Laeticia; and the couple’s two young children. Of course France will also benefit, as the ruling allows it to get its hands on the inheritance taxes the estate generates. Hallyday’s lawyers intend to appeal, citing evidence that he and his wife were already planning to apply for U.S. citizenship when he died. 

Seul le temps dira: only time will tell.

The Hallyday case has implications for how your social media may figure in your estate planning, will contests, and conceivably, a number of other legal issues. For example, if a disgruntled heir argues that you lacked capacity when you signed a will cutting him out, what will your Facebook posts say? Will you have posted any comments, even in jest, referring to your poor memory or "losing it"? Or suppose you relocate from New York and claim that Florida is your domicile, relieving you of paying New York State estate taxes. Will your Instagram account back you up, or betray you as they did Hallyday?

Be careful what you post. This is a whole new world and this is uncharted territory!

Funnyman Jerry Lewis' will no laughing matter for children from first marriage

Jerry Lewis died of heart failure in August at age 91. Over the years the comedian, actor and director gave generous amounts of time and money to “Jerry’s Kids,” children coping with muscular dystrophy. Lewis' generosity did not extend to the children from his first marriage, however: He cut them out of his estate. His 2012 will, now public record, states: “I have intentionally excluded Gary Lewis, Ronald Lewis, Anthony Joseph Lewis, Christopher Joseph Lewis, Scott Anthony Lewis, and Joseph Christopher Lewis and their descendants as beneficiaries of my estate, it being my intention that they shall receive no benefits hereunder.” 

Joseph, the youngest, committed suicide in 2009. The surviving sons, all with his first wife, singer Patti Palmer, are now in their 50s.  Lewis married Palmer in 1944, a few years before his star rose meteorically as a result of his partnership with Dean Martin. The 36-year marriage to Palmer reportedly was not smooth; Lewis admitted he had often been unfaithful. And his relationship with his children was apparently not much better than it was with his spouse. When Joseph died, the sons reportedly blamed their father. Gary told the Daily Mail: “Jerry Lewis is a mean and evil person. He was never loving and caring toward me or my brothers.” Gary maintained that his brother had died, in part, of a broken heart, and that the tragedy might have been averted if his father had reached out to him.

Also disinherited: Suzan Minoret, born in 1952 and allegedly the product of an affair. Lewis never confirmed or denied fatherhood. Minoret is currently homeless and living in Philadelphia.  

According to the will, Lewis’ current wife SanDee Pitnick, who he married in 1983, will get everything. Their adopted daughter, Danielle, is next in line. Danielle was Lewis' manager, and his relationship with her was vastly different from the one he had with his sons. In an interview with Inside Edition, Lewis spoke of his pride in Danielle and his close bond with her. “I don’t have to do anything for her to love me. She loves me already,” he told the interviewer.

There are varying estimates of the value Lewis’ estate. The cash seems shockingly low, perhaps $2 million, including a house in Las Vegas. But there is also a Lewis Family Trust. It is a private document, but experts speculate it could own the movie rights to Lewis' most famous films. That intellectual property could be highly lucrative for Pitnick and Danielle in the future.

Football coach's heirs cry foul

Deceased college coach Jim Carlen's three children are in court, claiming their father fumbled his last will. Or to put a finer point on the metaphor, that he was tackled by his second wife.

A highly regarded football coach at the University of South Carolina from 1975 to 1981, Carlen enjoyed a lucrative post-football career in banking and real estate. He died in 2012 at age 79 after several years of cognitive decline that first manifested itself in 2009, when he gave up driving. His estate is estimated at about $10 million.

Carlen's first marriage to wife Sharon produced three children. In 1983 he remarried and had a child with his second wife, Meredith. According to an August 1, 2013 article in the newspaper The State, the children from his first marriage allege that their father lacked the mental capacity to know what he was doing when he revised his will in 2010. That will, filed with the  probate court after his death, differed from all his prior wills in that it left nothing to his children and everything to Meredith. The children are petitioning the court to replace Carlen's 2010 will with his 2007 will. They claim that the later version is the product of undue influence over someone with diminished mental capacity, and that the 2007 will reflects their father's true wishes. The State article quotes from their court petition:

"In late 2010 Carlen was driven from Columbia to the law office of an attorney in Hilton Head Island...While in Hilton Head, Coach Carlen was apparently presented with a document entitled Last Will and Testament … which he purportedly signed...Unlike the 2007 will which provided for both Coach Carlen’s children and his wife, Meredith, the 2010 will left all of his property to his wife Meredith and left nothing whatsoever to his children or grandchildren: not money; not personal property; not a photograph; (nor) memorabilia from any point in Coach Carlen’s career or a token for them to remember him by...Carlen was made to execute a new power of attorney in favor of Meredith, empowering her to assume full control over all aspects of his financial affairs...After she assumed control over Carlen’s finances, she stopped making annual tax-free gifts to the three children – gifts that Carlen customarily made.Meredith led the Carlen children to believe that she may have lacked the financial resources to provide for Coach Carlen’s basic needs. Clearly this was not the case..."

Among the assets in Carlen's estate are gold coins valued at $538,000; close to $2 million in Coca Cola stock; interest in several pieces of property totaling about $300,000; and a half interest in an umbrella company that oversaw some of Carlen's business interests, worth about $3 million. 

In the fullness of time, the matter will be decided in the courts, at great expense to all concerned in time, trouble and legal fees.For now, here's my takeaway from the Carlen estate planning fiasco: If you are the testator (person creating a will), you should take steps to lessen the possibility of your estate being challenged, particularly if you anticipate that there may be disgruntled heirs out there who will challenge it. Steps to take include:

• Make sure your will, trust, power of attorney or other documents have every legal "i" dotted and "t" crossed and are drafted and executed in conformity to Florida law if you are a Florida resident, or in conformity with the state in which you are domiciled. 
• Consult with a qualified, experienced estate planning/elder law attorney. He/she should take the time to discuss the ins and outs of your family and financial situation, not just quote you a fixed price and grind out documents through a boilerplate process. Beware of do-it-yourself forms and office supply forms.
• If  there are potential concerns about your mental capacity, your lawyer may advise you to see your physician, psychologist or psychiatrist to obtain documentation of your competency. Note that declining capacity does not necessarily mean you are incapable of understanding and executing an estate plan. Even if someone is "slipping," he/she may be perfectly lucid at times and capable of doing so. Each individual's situation is different and must be assessed individually. Your attorney will know what questions to ask and how to handle the situation for your and your family's protection.
• Do not have beneficiaries present at your consultation with your attorney. A competent and skilled estate planning lawyer will, rightfully, exclude such an individual from your consultation, at least in the beginning stages, and even if you and the other person insist that it's fine with both of you. This is how your attorney protects you, as well as your beneficiary, from possible future claims of undue influence or fraud.
• You should select your estate planning attorney. Your beneficiary should not. If you use an attorney selected by the beneficiary, you open the door to allegations of undue influence, as the Carlen case illustrates.
• Your attorney may suggest that you use a trust, rather than a will, as the centerpiece of your estate plan. Because a trust is not public record, it provides additional insulation against possible attack.

On the other side of the coin, if you believe that you have been improperly "cut out" of a loved one's estate plan because of undue influence or fraud, or because the testator did not have the mental capacity to know what he/she was doing., be prepared: This type of litigation is usually a long and expensive process, with no guarantee of success. 

Sassoon's final cut: late hairstylist cut son from will

In my Feb. 18 post I noted that Florida law does not require you to leave anything to an adult child in your will. From time to time I will meet with a client who wishes to disinherit a child. It is a decision generally accompanied by considerable anguish, often following an extended period of estrangement and discord. This is the decision that was apparently made by Vidal Sassoon, the avante-garde hairstylist and business mogul. Sassoon died of leukemia in California last May. The Daily Mail now reports that Sassoon's will cuts out David Sassoon, one of his three children. The will was written two months before Sassoon's May 2012 death. David Sassoon, 41, will get none of his father's reported $152 million fortune. Sassoon had noted in his memoir that David was a "mischievous" child, but the details of their relationship are not known.  Sassoon has two other children.

Will there be an estate challenge? On what basis? How will the disinheritance impact the relationship of David and his two siblings? I suspect we have not heard the last of this story.

If you are considering disinheriting an adult child or leaving him/her a significantly lesser amount than the child likely feels entitled to, I urge you to  consult an experienced estate planning attorney and think, re-think and think again. If you decide to disinherit, your attorney will advise you on the best way to proceed. Just as there are smarter methods to pass assets to your heirs, so there are smarter ways to cut out an heir. For example, contrary to popular belief, it is not advisable to leave $1 to the child you wish to disinherit; that can open the door wider to a possible estate challenge and delay the administration and closure of your estate.

Many people mistakenly think that adding an in terrorem clause to their will or trust will defuse potential estate challenges if a child is disgruntled with the size of his inheritance or cut out entirely. The in terrorem clause states that the person challenging the estate loses the right to receive anything that he would have otherwise received under the instrument. However, Florida does not recognize the validity of the in terrorem clause.

If you need help with these matters, contact The Karp Law Firm lawyers for assistance.  

Can you disinherit an adult child?.

Not all parents enjoy a warm relationship with all their children. I've met with many parents - some pained, some resigned, others angry - who have been estranged from their children for years. They may have tried reaching out and been spurned by kids who want nothing to do with them. Or the parents may find the child's behavior so egregious or heartbreaking that they have just given up.

In these situations, parents often ask if they are obligated to leave anything to the estranged child. The answer is no. Under Florida law, you may disinherit an adult child entirely, or leave him as little as you desire, unless there is a court order in a divorce requiring the parent to do so. This could be part of a child support order for minor children; or a property settlement agreement where the parties have agreed and contractually obligated themselves to make provisions for their children, whether the children are minors or adults.  

If you plan to disinherit an adult child, or leave him less than what would probably satisfy him, it is crucial to create an ironclad estate plan. If you die without a valid Florida estate plan, Florida intestacy laws govern who gets your assets. And guess what: Florida law 732.103 states that if there is no surviving spouse, your estate passes to your lineal descendants.

The law requires that you recognize "the natural objects of your bounty" which of course includes your children. Therefore, if you wish to disinherit a child, I recommend that you acknowledge his existence in your Will and/or Trust by stating in the document that "For reasons known to me, I make no provision for (child's name) and/or the child's lineal descendants." Refrain from spelling out the actual reason you are making no provision. If you state a reason, you may provide a jumping-off point for the child to mount an estate challenge. Not revealing your reasons reduces the likelihood that your disgruntled heir can successfully challenge your dispositions.

People frequently ask if, as a way of acknowledging the child, they should leave him $1. This is a bad idea, for several reasons. First, leaving the child any amount automatically gives him the legal right to obtain information about your estate, without having to file a lawsuit. Second, even that paltry $1 gift must be delivered to the child and a receipt obtained. If a receipt cannot be obtained, the $1 gift will have to be filed with the registry of the court to be held for the beneficiary. All of these administrative steps incur additional costs, create delays, and cause unnecessary headaches for your Personal Representative or Trustee. Moreover, as you might expect, costing your estate money, creating delays and annoying your Personal Representative or Trustee is exactly what many disinherited children have in mind. I have seen cases where the child refused to take delivery of his "gift," ignored certified mail, refused to sign receipts, and threw up every possible obstacle to bog down the smooth administration of the estate. He need not launch a formal lawsuit to create problems, delay the Florida probate or trust administration process, and create hassles for your beneficiaries.

Occasionally a client wants to leave an estranged child a modest amount. I usually recommend that they  exclude that child as a beneficiary under the Florida Will or Trust, and instead, name him/her as the designated beneficiary of a specific asset, such as a bank account that is payable on death by the bank to the beneficiary, keeping your estate and its Personal Representative and/or Trustee out of the process. Because the asset has a designated beneficiary, it will pass outside the Will or Trust. The Personal Representative or Trustee should know about this account, and when the time comes, should request that the attorney contact the child or the bank with the information about the account, and a copy of the parent's death certificate. The child can then claim his/her inheritance on his own, and will have no opportunity as a beneficiary of the will or trust to create problems for the Personal Representative or Trustee.

Another question I'm asked with regularity is whether a "no contest clause" is of value. A no contest clause states that a beneficiary who challenges the estate will receive nothing. Clients hope this will discourage a child from making trouble when he/she finds out they are getting nothing, or a sum that is sure to disappoint. Although that may be viable in other states, under Florida law a no-contest clause, either in a will or a trust, is unenforceable. 

As a parent, I feel the pain of clients whose relationship with an adult child has been fractured. If this is your situation, I wish you and your family a speedy and happy reconciliation. But if that is not to be, you are entitled to do whatever you want with your hard-earned assets. Contact our estate planning lawyers for a consultation to discuss your needs.

Learn more about Florida Wills and Trusts and Florida estate administration..

To read the Florida Probate statutes online (an excellent cure for insomnia!), click here.