As many of you who follow celebrity gossip know, Khloe Kardashian and Lamar Odom have had some interesting trials and tribulations of late. Once reality television’s favorite couple, the two had split and their divorce had been all but completed. So far, nothing novel as far as wake-up calls to individuals going through divorce.
But something strange (very strange) happened on the way to final judgment. Lamar had an extended stay at a Las Vegas brothel that put him in a coma and facing death. As Lamar lay unconscious, fighting for life, Khloe dismissed her divorce petition and turned up at Lamar’s bedside. From a legal standpoint, she had all of the rights of a spouse in an intact marriage at that moment.
Is that consequential? Quite so. Under every state’s probate code, a wife may make health care decisions for her husband, including whether to consent to a lifesaving procedure or to remove lifesaving equipment – unless Lamar had signed a health care directive, also known as a “living will,” that designates one or more individuals to make these decisions and also expresses his wishes as to end-of-life treatments.
Let us assume that Lamar had no living will. Under these circumstances, his all-but-ex-wife-in-name-only literally held the power of his life or death in her hands. For many who have been through a bitter divorce or might be contemplating one, this prospect likely sends shivers up the spine, resembling an episode of a police procedural or soap opera where the wife has her hands ready to “pull the plug” on her husband.
While some may think this a bit of melodrama, others will recognize this as cold reality. We know from years of experience that many former spouses would not want their ex to have the type of control Khloe had and continues to have over Lamar.
The issue actually extends beyond the ability of Khloe to determine what care Lamar receives facing death, but also involves millions of dollars. If Lamar had died shortly after Khloe dismissed her divorce, Khloe likely remained a primary beneficiary of Lamar’s estate. Unless Lamar had changed his will and designated new beneficiaries on his trusts and insurance policies, Khloe likely would have stood to benefit significantly from a financial perspective in the event of Lamar passing.
We do not know the details of the financial settlement the parties agreed to prior to the dismissal, but Lamar had a marital share in a significant amount of Khloe’s property, which may well exceed the value of Lamar’s earnings from basketball. Khloe went from having to yield some of her property in divorce to not only keeping it all but gaining some from Lamar’s estate.
For many going through divorce this may seem a nightmare scenario come to life.
Can you take steps to avoid these strange pitfalls? Could a spouse quickly dismiss a divorce to become the sole beneficiary to the other spouse’s estate?
To answer the last question first, if Khloe and Lamar did not have a prenuptial agreement and Lamar never changed his will or beneficiaries, Khloe would indeed have a financial windfall due to the untimely death of Lamar, though she would likely face a fight in probate court from Lamar’s family. Death ends a divorce proceeding, and control of the assets leaves the family court and moves to probate court.
How can you avoid your ex having the power Khloe had and has over Lamar?
First, have a provision in a prenuptial or postnuptial agreement that states how property shall be divided in the event of one spouse dying after divorce proceedings begin but before entry of a final judgment.
Second, immediately after filing for divorce, change the beneficiary of your will and any trusts or insurance policies (caveat: you likely cannot change the beneficiary of any trust or policy held jointly with your spouse without also getting the consent of your spouse, but you can amend your own will as to who you wish to inherit those assets).
Third, execute a living will that designates someone other than your spouse as your power of attorney for health decisions, and make your wishes clear with regard to end-of-live decisions.
While few of us enjoy thinking about such morbid situations, few of us want to feel the sense of powerless should tragedy strike during a divorce.
If you have questions about death and divorce, contact us – we can help.