There’s another high-profile inheritance dispute in the news and, as usual, we’re here to weigh in with some legal insights.
Brooklyn’s own Larry King was a prolific television and radio host whose career spanned seven decades and 50,000 interviews. Of course, he was an equally prolific spouse, having married eight times to seven different women. So, it’s somewhat fitting that a lingering divorce could be the undoing of his estate plans.
People.com reports that King made a handwritten Will two months after he filed for divorce from Shawn Southwick King. But, the divorce wasn’t finalized before King died on January 23.
People.com reports that the Will states:
This my Last Will & Testament…It should replace all previous writings. In the event of my death, any day after the above date I want 100% [placed above illegible cross-out] of my funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance & Cannon.
Further complicating matters is that two of King’s children died after he made the Will.
According to Yahoo.com, King’s widow was the beneficiary under a prior Will, and she intends to challenge the validity of the later Will. She claims that the couple was on a path to reconciling before King’s death, and that the second Will was a result of undue influence.
However, the probate geeks in us are salivating at the opportunity to discuss the many common probate issues jam packed into this one story. Since we are not California probate attorneys, we can’t predict the outcome of this case. But, since it has some universal themes of probate, it’s worth discussing how New York would treat the issues.
Like all states, New York has a “Spousal Right of Election.” The statute protects surviving spouses from being disinherited. A spouse is entitled to take the larger of $50,000 or one-third of the deceased spouse’s estate, no matter what the decedent stated in his Will.
But, how does a pending divorce affect this?
A pending divorce doesn’t automatically disqualify a surviving spouse from enforcing a Right of Election. But, there are a couple of ways it can.
The first is when the court issues a retroactive divorce judgment. Sometimes, courts will issue a nunc pro tunc judgment, retroactively dating a divorce to before the death of a spouse. They usually do this when a divorce was about to be concluded. The court will examine factors like whether the parties had a settlement agreement, or even a draft settlement agreement.
The second is abandonment. It’s important to note that the Surrogate’s Court will assume a divorcing spouse has a Right of Election unless someone timely files a claim that the surviving spouse abandoned the deceased spouse.
The abandonment test is fact-specific, and must be assessed on a case-by-case basis. Filing for divorce in and of itself is not abandonment, because it can be interpreted as an attempt to dissolve a marriage in an orderly fashion.
If you can prove that the spouses were living apart, this would be a good start. But, it is not conclusive. For example, a mutual agreement to part ways is not abandonment. Likewise, if the decedent abandoned the surviving spouse, an abandonment claim will not be successful. The spouse will have a Right of Election.
Indeed, the strongest case for abandonment would be when the decedent did not want the surviving spouse to leave, but the surviving spouse left anyway. Then, the claimant might successfully argue that the surviving spouse has forfeited her Right of Election.
Abandonment cases can be difficult to prove because one of the parties is no longer alive to testify, and New York’s “Dead Man’s Statute” precludes parties from offering statements of deceased parties.
At minimum, a Will must be in writing and signed at the end by the testator, or by another person at the testator’s direction and in his presence. At least two people must witness the signature and sign their names to the Will within 30 days of each other. The testator must also make an oral declaration to the witnesses that the he intends the document to be his Last Will and Testament.
Additionally, there are other steps you can take to ensure that your Will can stand up to probate.
Despite these formalities, New York is not a state that requires a Will to be typed or attorney supervised. It is one of the states that recognizes “holographic wills.”
A holographic will is a handwritten and testator-signed document and is an alternative to a Will produced by a lawyer. Nevertheless, it’s still required to meet the minimum requirements listed above.
So, why hire a lawyer to prepare your Will?
In New York, there is a legal presumption that an attorney-supervised Will is valid. In that case, anyone seeking to invalidate the Will has an expensive and unpromising uphill battle.
On the other hand, holographic wills like those drafted and signed by Larry King are frequently disregarded by courts. Fairly or unfairly, a handwritten Will outside the presence of counsel suggests that the document was made fraudulently, in haste or under duress.
In King’s case, the stricken text only feeds a narrative that King prepared the document without any thought. Did he change his mind on the spot? At a later date? Did King even make the changes himself? No one knows, because the instrument lacks all formality. And arguably supports the assertions of Ms. Southwick King.
Sadly, two of King’s children died after he made the handwritten Will, but before King himself passed. We call them “Pre-Deceased Beneficiaries,” or beneficiaries under a Will who did not outlive the testator.
It would seem that a simple resolution to the King family dispute would be to simply give Ms. Southwick King the shares of the Pre-Deceased Beneficiaries. But, this is not the law in New York or anywhere else because of “Anti-Lapse Statutes.”
New York’s Anti-Lapse Statute says that if a beneficiary under a Will dies before the testator, the gift goes to the deceased beneficiary’s children. But, two conditions must apply to save a gift, or prevent it from “lapsing.”
First, the deceased beneficiary’s children cannot also die before the testator. Second, the testator must have been a parent or sibling of the deceased beneficiary. The gift “lapses” unless both of these conditions are met.
When a gift lapses, it becomes part of the “residuary estate,” which generally includes assets the testator forgot to include, or acquired after he made the Will. The residuary estate is then divided according to the terms of the Will, or intestacy law, if the Will does not address residual property.
New York lawyers can also attempt to prevent lapsed gifts by adding “Per Stirpes” provisions to a Will. These simply direct that should a beneficiary not survive the testator, the gifts must be given to the deceased beneficiary’s children in equal shares. Thus, if the testator leaves 20% of his assets to John, but John does not outlive the testator, John’s children would split that 20%, and each receive 10% of the testator’s estate.
The Bottom Line
As we’ve said in this Blog many times before, there is no such thing as a completely iron-clad state plan. This is especially true when a lot of money is involved. However, there are many things a skilled estate planning practitioner can do to minimize the risk that you or your loved ones will end up in a protracted, expensive fight over an estate.
Clearly, Larry King did himself and his heirs a great disservice when he didn’t consult counsel for his estate planning needs. We suspect we’ve not heard the last of this matter, as the parties hunker down for years-long litigation. Let’s all use the ongoing updates as a reminder of the importance of good estate planning.
The information on this website is not legal advice. It is for information purposes only. No user of this site should act or refrain on the basis of this information without seeking legal counsel. This website does not create an attorney-client relationship. Photo credit: Kathy Hutchins / Shutterstock.com Stock Image ID 67402804