Posted by Martin Heller Potempa & Sheppard, PLLC on December 14, 2021
Share This Article:
Everyone needs to have estate plans in order, including celebrities. Because of this, you’ll occasionally hear about estate planning-related topics in the news. This edition covers some estate planning current events – looking at Larry King and his “secret Will.”
Based on media reports, here is the situation:
In 2015, Larry King and his wife, Shawn, created an estate plan, which Shawn describes as “watertight.” Apparently, they used Wills rather than Trusts as the document for their estate plan.
In 2019, Larry filed for divorce from Shawn.
Also in 2019, two months after he filed for divorce, Larry wrote a new handwritten Will. Handwritten Wills do not need to be witnessed or notarized. This new Will left everything to five of his children.
Larry’s new Will did not include Shawn.
On January 23, 2021, while the divorce was pending in court, but before it was final, Larry died.
Saying that she and Larry had reconciled, Shawn is now contesting the handwritten Will.
Thoughts on the Situation
1. In general, a Will is not a “watertight” way to set up an estate plan. It is very difficult to prevent someone from changing his/her Will anytime he/she wants. A trust can be a “watertight” way to set up an estate plan, especially if it is an irrevocable trust. But, it is almost impossible to make a Will irrevocable. To do that, there needs to be some sort of agreement or contract between the couple. This agreement could be in the form of a prenuptial or postnuptial agreement that includes certain terms about the Wills. It could be something like (a) Each will leave ½ of his/her estate to the other; or (b) one agrees to include the other’s children as beneficiaries of his/her estate.
2. It should not be a surprise that after a person files for divorce, he/she changes his/her Will to exclude the hoping-to-be-divorced-from spouse. This is something we recommend to all of our divorce attorney friends – that their clients change their Wills right after filing the Petition for Divorce. One media site reported that when asked why Larry King might have changed his Will after he filed for divorce, she said, “It beats me!”
This is not the same as changing a beneficiary designation on a retirement account or a life insurance policy after the divorce petition is filed. Once the divorce petition is filed, an automatic order is issued by the court preventing either of the couple from changing the ownership of assets and beneficiary designations. This order does not apply to changing a Will. A beneficiary’s position in a Will is considered an “expectancy,” as in you might expect to receive something, but then again, maybe you might not actually receive anything. It is not considered a right to receive, as once the Will is written, you have the right to receive what is designated to you.
3. Even though Shawn states that she and Larry King reconciled, a reconciliation does not invalidate the new Will. Maybe, notwithstanding the reconciliation, Larry still wanted to leave everything to five of his children and nothing to Shawn. Larry would have needed to execute a new Will to invalidate the existing one if he wanted to include Shawn.
4. Shawn has mentioned that she is fighting the new Will, possibly by arguing undue influence. This argument is based on the idea that someone else had convinced Larry to change his Will to exclude Shawn, which he might not have done absent the “influence.” The burden of proof is initially on Shawn to show that someone had a “confidential relationship” with Larry and used that relationship to get Larry to change his Will, presumably in favor of this specific person. Once the confidential relationship is established, the person has the burden to show that he/she did not influence Larry to take out Shawn and instead benefit him/herself.
5. There is no mention in the media about a prenuptial agreement. Without a prenuptial, Shawn might be entitled to part of Larry King’s estate, regardless of what his Will says. This is referred to as a spouse’s “elective share.” Just about every state has a law that says you cannot disinherit your spouse absent a prenuptial or postnuptial agreement, or in some instances, a pre-existing trust.
6. Pretend that Larry did not do a new “secret” Will and that his old Will included Shawn. In that case, the pending divorce would not have changed Larry’s existing Will, and Shawn would have retained her position as a beneficiary of the estate. Again, this is another reason we recommend that after (or before) filing for a divorce, the person seeking the divorce updates the Will and other estate documents. For instance, when you are getting divorced, you might not want your spouse-to-be-divorced in charge of your medical decisions if you are rushed to the hospital. In that case, you should change your Health Care Power of Attorney away from your spouse and appoint someone else.
Nashville Estate Planning Lawyers for Second Marriages and Blended Families
Estate planning is often more complicated for those with more than one marriage or who are part of a blended family. However, that doesn’t mean there are no solutions available. At Martin Heller Potempa & Sheppard, PLLC, we offer estate planning services for people in various situations to ensure they have assistance that fits their exact needs.
Contact our Nashville estate planning attorneys today to find out how we can help.
If You Need Legal Assistance, Contact MHPS Law Firm Today