The news of Anthony Bourdain’s suicide totally shocked me last week. Bourdain seemed to live the life many of us aspire to lead but do not have the courage to “go for.” He seemed just a little bolder, a little more honest, a little more adventurous, a little more “in the moment” than the rest of us. He seemed to happily navigate on the edge—and yet he died without warning.
But in the estate planning world, these untimely deaths become teachable moments.
It is too early to know all the details, but it is unlikely he had an estate plan in place. The situation is further complicated by the fact that he was separated from his spouse but not legally divorced at the time of his death—which can lead to a host of estate planning issues and unintended consequences.
When spouses decide to divorce, the usual framework is a process involving attorneys and the court system. But it is not totally uncommon for some to remain permanently separated yet not divorced. Unfortunately for both family law and estate law, it is a hard place to be with lots of gray area.
Bourdain’s separation from his second wife, Ottavia Busia-Bourdain, is well-documented. As some of you might recall, Ottavia is actually a professional MMA fighter. While they split up a few years ago, the two remained on good terms—even after he began dating Asia Argento, an Italian actress, shortly after news of the split. Ottavia got their $3 million New York condo as part of the split, and primary custody of their now 11-year-old daughter, Ariane.
But separation does not mean their spousal rights are terminated. State laws provides an enormous amount of rights and privileges to marital status. These rights are as wide-ranging as Social Security benefits to spousal privilege in court to inheritance rights.
Now, Bourdain’s estranged wife is his primary heir and she will be the owner of most, if not all, of his legacy. She is also legally his next of kin.
In terms of immediate issues, she controls his body and his funeral arrangements. His mother Gladys Bourdain noted to the media that she was unsure of funeral plans yet, as Ottavia is still legally in control.
On the financial front, it does not seem like Bourdain created much of an institution around himself. The copyright on his books was never assigned to any trust, holding company or other entity and it remains to be seen whether there was a plan to keep his businesses afloat without his personal participation.
But there is no doubt that his executors and administrators can build an empire out of his intellectual property and operating businesses. With the right management, the Bourdain name and likeness can stay vibrant and keep generating income. Maybe there actually are book drafts to polish up and TV concepts to pitch. There might even be restaurateurs looking for a new concept and/or partner.
The potential here is vast. A creative and savvy executor can turn Bourdain’s name into the brand and commercial empire he never cared about in life.
Look at Michael Jackson (who we have written about on this newsletter many times before); he was practically insolvent in life because of his ongoing legal battles and his reluctance to capitalize on some of his creative output. But now the Jackson kids are reportedly billionaires thanks to the fact that in life, Jackson had hoarded the rights to other people’s creative output (like the Beatles) as well as his own. Michael Jackson is still the best-selling musical artist in the world.
Bourdain’s books will most probably see a similar posthumous bestseller effect. Odds are good that ratings of unaired episodes will be the best ever. His “wife” will get her piece of that income.
If he left an estate plan, the rights and royalties may well go into a trust for his daughter’s upkeep while she is a minor and for her use when she becomes an adult. Otherwise, any money that belongs to her will be subject to a court process called Guardianship and will flow into the Unified Gifts to Minors Act (UGMA) accounts while the assets themselves sit in Unified Transfers to Minors Act (UGTA) accounts until she turns 18. Whatever Bourdain left behind for his daughter she will not be able to touch it for a while.
While the money will never bring him back, it can at least make life without him easier—provided of course it is managed properly now and in the future.
Lessons to be Learned:
Ultimately when a couple is splitting up, they need to find the right way to move forward–whether divorcing or permanently separating and their family law and estate planning attorneys also need to communicate with each other.
Divorcing couples should update their estate planning documents, including health care directives and the final disposition agent, as well as the beneficiary designations on their accounts.
Anything left directly to minor children should also be paid special attention
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