The Litigation-Filled Life of Anna Nicole Smith, and the Legal Aftermath of Her Demise

By JOANNA GROSSMAN
Monday, Feb. 12, 2007

Last Thursday, Anna Nicole Smith's body was found in a Hollywood, Florida hotel room. Her death marked an untimely end to a life characterized by celebrity, tragedy, and litigation.

Before Anna Nicole died, she was embroiled in several lawsuits, including her battle to share in her late husband J. Howard Marshall's nearly-billion-dollar estate. Her death will trigger yet more litigation -- as the three men claiming to have fathered her infant daughter, Dannielynn, fight for paternity, and, perhaps, control over Anna Nicole's own estate.

Though many facts remain unresolved, this column will map out the many legal battles begun before, and in the wake of, Anna Nicole's death.

J. Howard Marshall's Estate: Is Anna Nicole Smith's Estate entitled to a Share?

When she was 26, Anna Nicole Smith (whose legal name is Vickie Lynn Marshall) married oil tycoon J. Howard Marshall, then 89. Their marriage, which lasted only 14 months, ended with his death in 1995. Still, litigation over his estate between Anna Nicole and one of J. Howard's sons, Pierce, has dragged on ever since.

The battle was hard-fought on both sides, and both parties stubbornly refused to settle, despite the plethora of wealth to be shared. Their stubbornness led to an unexpected turn of events: The litigation over J. Howard's estate has now outlived both Pierce, who died last year, and Anna Nicole.

The death of Anna Nicole, however, does not put an end to this litigation. The personal representative of her estate -- who is, as of yet, unnamed -- can carry on the suit on behalf of her estate, which ultimately will benefit whoever inherits it. (An executor can be named in a will or an administrator can be appointed by the probate court.)

The litigation over J. Howard's estate is complicated, involving multiple courts, many appeals, and varied results. The cases revolved around a single basic claim: that J. Howard intended to leave a substantial portion of his estate to Anna Nicole, but was precluded from doing so because of the wrongful interference of his son Pierce. (I detailed the basis for this claim in a previous column.)

In one proceeding where this claim was aired, a Texas probate court ruled that Anna Nicole was entitled to nothing at all from J. Howard's estate. But, around the same time, a federal bankruptcy court in California reached the opposite conclusion: that Anna Nicole was entitled to $88 million from the estate.

Anna Nicole did not appeal the Texas ruling, but Pierce did appeal the California federal bankruptcy court ruling. That case eventually made its way to the U.S. Supreme Court, which had to decide whether the California federal bankruptcy court had jurisdiction to resolve the probate law issue involved in Anna Nicole's claim.

Anna Nicole won in the Supreme Court, with the Court ruling that the California federal bankruptcy court did, indeed, have jurisdiction. This victory entitled her to continue pursuing her claim in that court. (I explained the Supreme Court's ruling and its impact on Anna Nicole's claim in a prior column.)

Down the road, this may mean Anna Nicole's estate is entitled to the $88 million originally awarded. Or, if her claim is ultimately unsuccessful, her estate still may be held to be entitled to nothing at all.

Anna Nicole Smith's Estate: Who Will Inherit Her Estate?

What is in Anna Nicole's estate for someone to inherit? That turns, in large part, on the success of her estate in the litigation over J. Howard's estate. If her side ultimately prevails against Pierce's (both sides will be litigated by successors in interest, since the parties have died), there will be as much as $88 million more in the kitty -- in addition to whatever assets Anna Nicole owned at her death. (Whether Anna Nicole herself had accumulated money from her various ventures and celebrity stints -- or whether she had spent it all -- is unknown.)

Who inherits Anna Nicole's estate? At this point, we don't know -- because the answer will turn on at least three facts: whether she died with or without a will; whether, as some reports have alleged, she and her attorney, Howard K. Stern (not the famous radio personality Howard Stern), secretly, but validly married before her death; and in which jurisdiction she resided.

If Anna Nicole died unmarried and intestate (that is, without a valid will), her infant daughter Dannielynn will inherit everything. No matter where her estate is probated, the child of a decedent takes the entire estate under the rules of intestacy if there is no surviving spouse. (A child is not permitted to become the outright owner of property or money, however, so a guardian would be appointed to control Dannielynn's inheritance until she reaches adulthood.)

A marriage, however, would drastically change the inheritance scenario. If Anna Nicole had no will, then Howard-as-spouse could inherit a substantial share of the estate, if not the whole thing. (The rules vary by jurisdiction, but American states routinely give between half of the estate and the whole thing to a surviving spouse.) In some jurisdictions, Howard would share with Dannielynn; in others, he would be the exclusive heir. If Howard was not Anna Nicole's husband, however, he would inherit nothing if she died intestate -- even if he is Dannielynn's father.

If Anna Nicole had a will -- a question no one seems to have a definitive answer to, at the moment -- she might have left her estate to anyone. But certain rules might alter her estate plan. Howard, for example, would be entitled to take a percentage of her estate if he was her surviving spouse, as long as he didn't waive that right in a prenuptial agreement.

Children have no right to inherit from their parents, but they do have the right not to be disinherited by accident in most jurisdictions. So if Anna Nicole has a will that she wrote before the birth of her daughter five months ago, Dannielynn might be able to claim a "pretermitted" child share of the estate. (The idea behind giving Dannielynn a share would be that Anna Nicole simply never got around to amending her will to include Dannielynn. In this instance, that would very likely be the case, as she reportedly doted on Dannielynn, and had no idea she was about to die.)

Any bequest in a will to Anna Nicole's son, Daniel, who tragically died last fall right after his half-sister was born, would "lapse" since he predeceased his mother. Such a bequest would pass, instead, to the residuary beneficiary (the one who receives "everything else" in a will) or, if there is no such beneficiary, then it would pass through intestacy to the next-of-kin -- who would be Dannielynn if Anna Nicole was single, and probably Howard and Dannielynn if they were married.

Who is Dannielynn's Father? A High-Stakes Paternity Contest

The paternity of Anna Nicole's five-month-old infant remains a mystery. The mystery, however, is very likely to be solved: Since a court has already asserted jurisdiction over the paternity question here, we can expect DNA tests to be ordered all around. Given the extremely high accuracy with which paternity can be determined, we can assume this process will result in the identification of Dannielynn's biological father.

Although initially coy about identifying the baby's father, Anna Nicole eventually declared that her lawyer and paramour, Howard K. Stern, was the biological father of her child. It is his name that appears on Dannielynn's birth certificate.

Even before Anna Nicole died, however, a second man, photographer and former boyfriend Larry Birkhead, claimed he was the father of Dannielynn. After her birth, Birkhead filed a suit in a California court, asking that he be declared Dannielynn's father. The importance of that suit increased dramatically with Anna Nicole's death, since the baby's father will likely be awarded custody unless there is proof that he would be unfit.

Anna Nicole's death has spurred yet another would-be-father to emerge out of the woodwork, as well. Prince Frederick von Anhalt, the husband of 90-year-old Zsa Zsa Gabor, claims he had a decade-long affair with Anna Nicole and could be the father of her baby. He has not filed a formal petition asserting paternity, but, if he did, he would be in a similar position to Birkhead.

The last potential player in this paternity contest is a dead man: J. Howard Marshall. Anna Nicole's half-sister has written a tell-all book, in which she claims that Anna Nicole's late husband deposited sperm, when he was 90, that Anna Nicole might have used to become pregnant.

It's always possible that none of these four men fathered Anna Nicole's child, but let's stick with the current rumors for now. How are these competing paternity claims likely to pan out?

Let's take the easiest one first: If Dannielynn is the posthumously conceived child of J. Howard Marshall, then she has no surviving biological parent. And unless Anna Nicole and Howard were in fact married, she has no "legal" parent either. Custody of the child, then, could be awarded to another family member, or even an unrelated third party based on a court's determination of her best interests.

If Dannielynn is J. Howard's child, a guardian on her behalf could conceivably make a claim against his estate. Although the law in most states does not explicitly provide for posthumously-conceived children to inherit from their fathers, courts in some jurisdictions have recognized inheritance rights in some circumstances. (In contrast, a hypothetical posthumously born child, conceived during the father's life, would be treated as if she had been born prior to his death and inherit as any child would).

Important factors as to whether inheritance rights will be recognized include prior consent of the deceased father to the posthumous conception, the time that has passed since the father's death, and potential burdens created for other beneficiaries by permitting a posthumously- conceived child to inherit.

Could Howard K. Stern Be Given Custody If He Was Anna Nicole's Husband, But Not Dannielynn's Father?

Let's assume Anna Nicole's sister is wrong -- that J. Howard's frozen sperm were not in fact the source of this conception. Will biology dictate who is named Dannielynn's legal father? Probably.

In California, where Birkhead's paternity suit is currently pending, there is a statute creating a complicated set of presumptions regarding legal parenthood. A man who is married to a child's mother when the child is born is usually entitled to a presumption of fatherhood. (I explained California's parentage law in detail in an earlier column.) However, as noted above, DNA tests are likely to be ordered and to trump any presumption here.

Is the biological father a big winner in this high stakes game? It depends on his motivation for seeking a declaration of paternity. A declaration of fatherhood will probably result in a custody award (again, absent proof of parental unfitness) for that man. So if the father desires to raise Dannielynn, then that wish will be satisfied by a finding of fatherhood.

However, declaration of fatherhood will not, as some commentators have suggested in media reports, entitle the father to a share of Anna Nicole's estate. But the father will indirectly benefit from the child's inheritance (assuming the estate is worth something) in two ways. First, the father may be named the guardian of the child's property, enabling him to make decisions, within legal constraints, about how the money is spent for her care. Second, even if not the guardian, the father will indirectly benefit from the child's inheritance by, for example, living in the house and riding in the car that will be purchased for her.

So Many Lawsuits, So Little Time

Anna Nicole's battle to share in her late husband's estate may be the litigation that most defines her legacy, but it's far from her only foray into the judicial system. She was once sued, for example, by a nanny who claimed that Anna Nicole sexually harassed her. The nanny won an $850,000 default judgment based on Anna Nicole's failure to comply with applicable rules of evidence. The judgment caused Anna Nicole to file for bankruptcy, a move that ultimately led her to be able to successfully raise her claim against J. Howard's estate in bankruptcy court.

There were at least two pending lawsuits against her at the time of her death, which will likely now be waged against her estate. Anna Nicole had spent recent months as a spokesperson for TrimSpa, a diet products company. She and TrimSpa are named in a class action lawsuit filed last week, which alleges that they made false or misleading claims about the product's ability to cause weight reduction. This lawsuit has the potential to deplete Anna Nicole's estate. Perhaps a loss here could be countered by a victory in yet another lawsuit: a legal malpractice suit brought by Anna Nicole against one of the law firms that has represented her in some of her legal battles.

Anna Nicole was also battling former lover and real estate developer Ben Thompson, over the ownership of the Bahamas home where she had been living since before her daughter was born. News reports after her death claim that Thompson's lawyer has seized control of the house and changed the locks, over the objection of Howard K. Stern, who claims Anna Nicole validly purchased the home from Thompson. In addition to determining ownership of the house itself, this suit has the potential to dictate Anna Nicole's legal place of residence, which might in turn be important in determining where her estate is probated, and which court has jurisdiction over Dannielynn's custody. The house was apparently her basis for claiming lawful permanent residence in the Bahamas.

Though none of these suits have stakes to rival the probate litigation, all can potentially continue in the wake of her death. Unlike criminal cases, which end if the defendant dies, civil cases can be waged or defended by a party's successor in interest. The size and content of Anna Nicole's estate is thus very much undetermined.

Part of Anna Nicole's Legacy: A Morass of Litigation

There were many aspects of Anna Nicole's life that were unusual: her marriage to a man 63 years her senior; her intermittent and varied successes in Hollywood, as a reality TV star, Guess Jeans model, and Playboy Playmate; her tragic loss of a 20-year old child, followed far too soon by her own tragic, untimely death. But her litigious life makes her unusual as well. Lawyers, courts, and perhaps juries will now be left to sort out the legal morass she left behind.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.