Divorcing from your deathbed

Actor Dennis Hopper recently filed for divorce from his fifth wife, according to news reports. What makes this different from your run-of-the-mill Hollywood divorce is Hopper is terminally ill with prostate cancer and is believed to be seeking a divorce from his deathbed to protect his assets.

According to reports, Hopper filed for divorce to keep his wife, Victoria Duffy, from contesting his will, which leaves her only 25% of his estate. 

“Mr. Hopper is free to will his individual assets as he wishes,” Cordell & Cordell, P.C., attorney Erica Christian said. “However, the question is what are his individual assets and what are his marital assets.  He cannot will her interests in property to another person. This is something that would probably have been litigated after his death if Ms. Duffy alleged assets defined in the will were marital assets.”

Read on for a Q&A with Christian about Hopper’s decision, marital property, and his rights.

Q: Is it common to file for divorce while terminally ill to try and stop family litigation over assets post-death?

A: In cases where a party is concerned that the spouse will contest his or her will, filing for divorce and obtaining a final judgment resolving property division dissolves any claim that the spouse may have to the assets awarded to the other party.  If Mr. Hopper’s assets are divided and Ms. Duffy receives her interest in assets through the divorce, Mr. Hopper is free to will the remaining assets as he so chooses.

In situations where a party wants to protect assets for their children, the parties can enter into a prenuptial agreement defining property division, maintenance/alimony, and/or inheritance if the marriage ends because of death, separation, or divorce. It allows the signers to protect assets that they each acquired prior to the marriage but the assets earned during the marriage would be subject to the marital property laws of California.  

According to the information I read, the parties have a prenuptial agreement which states Ms. Duffy would receive 25% of the assets accumulated prior to the 14 year marriage.  I do not know whether the prenuptial agreement includes provisions regarding division upon death and I do not know whether or not the agreement is enforceable.

 

Q: Will he be granted this last-minute divorce?

A: If Mr. Hopper were to obtain a judgment of divorce from his current wife, he would be free to will his assets as he sees fit.  However, considering she has 30 days from the day she was served to even response to the petition for divorce, and the parties will need pretrial conferences and a trial date for litigation, if the parties do not agree to the terms of the divorce, it could be months before this divorce action would be resolved.  California may also have a statutory waiting period which requires the parties to wait a certain amount of time (120 days in Wisconsin) after the Respondent is served with the divorce papers before a divorce judgment can be granted.  

Q: Does his wife have any way to stop this? 

A: Although she may not be able to stop the divorce filing, the divorce process can be drawn out and litigated which would mean it could take more than a year for Mr. Hopper to obtain a Judgment of Divorce.  

 

Q: What if he dies before the divorce is final? Does his intention to divorce account for anything or as long as they’re still legally married, their assets are considered marital property?

A: If he dies during the process, they are still married.  I do not know the marital property, probate, nor the intestacy laws of California so I do not know what portion of the estate is marital.  

In regards to pre-marital assets, the prenuptial agreement would come into play if there is a provision that controls division upon the death of a party. However, just because a prenuptial agreement exists, this does not mean that the division outlined in the agreement would be what Ms. Duffy is limited to. The Court must review and approve the prenuptial agreement.

If the Court finds that the enforcement of the prenuptial agreement would be unjust or inequitable given the circumstances, the Court could refuse to enforce the agreement and California marital property laws would control all property.

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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