We’ve all seen Larry King Live, but if you’ve been following the news lately you’ve seen that Larry King is still making headlines after his death. The drama surrounding Larry King’s will is being spurred by Shawn King, his seventh wife. The lovebirds were in the early stages of divorce proceedings when King died earlier this year.

    In a twist that reads like a plot from Dallas or Dynasty, a “secret” handwritten will was discovered after Larry’s death which divided his $2 million estate among his five children and did not leave anything to his wife. Shawn claims that she and Larry put together a “watertight” estate plan as a couple in 2015, and she never knew about the handwritten will leaving her with nothing until it was discovered after his death. Shawn has alleged that King may have been influenced by his children, and that the handwritten will does not actually reflect his intent.

    However, under the shiny surface of this Hollywood story are some bedrock principles of Trust & Estate law. The situation that Shawn King and the representatives of Larry King’s estate now find themselves in is not so unusual that the law cannot offer solutions. Larry King's will was entirely handwritten, and the legal term for a will that is entirely handwritten is a “holographic will." Usually, wills are required to adhere to strict formalities - specific requirements and processes must be met or the will will be declared invalid. However, the standards around holographic wills are more relaxed because the law considers a document in a person’s own handwriting to be a more reliable representation of that person’s wishes than a typed document. It's easy to keep a handwritten will a secret, but it might be easy for a court to recognize that will as valid as well.

    Additionally, Shawn should not have been so shocked that she and Larry’s “watertight” estate plan did not hold water, because the couple was divorcing at the time of Larry’s death. Legally, nothing springs a leak in the estate plans of married people quite like a divorce. Reportedly, Shawn and Larry’s divorce was not final at the time of Larry's death. If their divorce had been final, Shawn would have been automatically cut out of the will as soon as the marriage was officially dissolved. Divorce is one of the only events in a person’s life that can automatically and irreversibly alter that person’s existing will by law. In some states (like Missouri) the probate court will divide up the deceased person’s estate as if the divorced spouse had died on the same day that the divorce was final - in other states (like KS) all provisions in the will in favor of the divorced spouse are automatically revoked upon the divorce. In a few states, a divorce will entirely revoke an existing will.

    But, since Shawn and Larry were not officially divorced at the time of his death, Shawn probably does not need to worry too much because of a little-known (but very important) legal concept called the spouse’s elective share. In the American legal system, you can disinherit anyone you want - except your spouse. Even if the will gives nothing to a deceased person’s spouse, or explicitly states a dying wish that the surviving spouse inherit nothing, the spouse can still “elect against the will” and almost automatically receive (in most states) about a third of the estate and maybe even as much as half. Some states base the size of the elective share on whether or not the couple had children, other states calculate the size of the share based on the length of the marriage but in every state, the spouse can easily get a significant chunk of the estate even if they are left out of the will. The only way to prevent the spouse from electing against the will and getting that share is by contract before or after marriage (a pre-nuptial or post-nuptial) agreement that meets specific requirements and makes a full disclosure of what the elective share that the spouse is being asked to give up would be.

     Larry King was married seven times, so he may have known a thing or two about prenuptial agreements. For those of us with less experience playing the newlywed game, Larry’s story teaches us the importance of updating estate planning documents after divorce, and the hidden specter of estate planning that is the spouse’s elective share.