The Continuing Legal Battle Over What the Late Anna Nicole Smith Left Behind: Her Body, Her Will, and Her Daughter

By JOANNA GROSSMAN
Monday, Feb. 26, 2007

In a column written shortly after Anna Nicole Smith's death, I discussed some of the legal issues that were still pending. In this column, now that three more weeks have passed, I'll update readers on new information and developments since then (including the ruling regarding Anna Nicole's remains), and the key issues that still remain to be resolved (such as the heir to her estate and the identity of Dannielynn's father).

Who Gets the Body? Anna Nicole's Infant Daughter

First, there was the issue of where Anna Nicole's body would be buried. (Reportedly, Smith had a will, but left no written instructions to the disposition of her remains there or elsewhere.)

Anna Nicole's estranged mother, Virgie Arthur, argued for Texas, where other family members are buried. But Smith's companion Howard K. Stern insisted that she would have wanted to be buried in the Bahamas next to her young son, Daniel.

In an odd, tearfully delivered ruling, Broward County, Florida Judge Larry Seidlin awarded custody of the remains to Dannielynn -- or, more accurately, as Dannielynn is an infant, her guardian.

In coverage, the melodrama has been conspicuous, but the legal basis for the decision has rarely been made clear.

Readers may well wonder: What law dictated that a five-month old baby be awarded her mother's remains?

According to Florida law, even if an individual leaves formal oral instructions regarding dispositions of remains, they will be honored -- as long as there is adequate proof of them. Several witnesses testified that Anna Nicole wanted to be buried next to her son, Daniel, in the Bahamas. However, the court did not believe the testimony amounted to adequate proof of formal, oral instructions.

In the absence of enforceable instructions by the deceased, Florida law seems to say that control over a decedent's remains belongs to her next-of-kin. The phrase "next-of-kin" can be used loosely, but in the law, its meaning is very technical: It refers to the person or class of persons who would inherit the estate if it had passed under the laws of intestacy -- that is, the laws that govern what happen if a person dies without a will. (While Anna Nicole reportedly did have a will, the hypothetical "if" still applies here to determine the meaning of "next-of-kin.")

That person, the judge correctly concluded, is Dannielynn. That is unsurprising: Intestacy law commonly favor progeny over parents as "next-of-kin." As noted above, however, as Dannielynn -- at the ripe old age of 5 ½ months -- cannot literally decide where her mother should be buried, her guardian, charged to act in her best interests, will make the decision on her behalf.

Why Anna Nicole's Will Probably Lack Any Legal Significance At All

A week after Anna Nicole died, her lawyers released a will that had been executed by "Vickie Lynn Marshall" (Anna Nicole Smith's legal name) in 2001.

As of now, the will has not been submitted to be probated -- a proceeding in which the will's "proponent" asks a specialized court to recognize it as a valid will, appoint a personal representative for the estate, and permit that person to collect the decedent's property, pay debts and taxes, and transfer property to beneficiaries according to the provisions in the will.

But even if the will is probated, it very probably will have no effect at all on who inherits what. Here's why:

The Gift to Anna Nicole's Son, Daniel, "Lapses"

Anna Nicole's will names only one beneficiary: her late son, Daniel Wayne Smith. The will creates a trust to be administered by Howard K. Stern for Daniel's benefit, and provides that all her property should be put into that trust. Daniel was to receive support from the trust while a minor, and then to receive distributions of principal at ages 25, 30 and 35.

Although one can create a trust through a will -- the resulting device is called a "testamentary trust" -- it must meet all the requirements for a valid trust. Perhaps the most important requirement is that a trust must have a beneficiary -- someone for whose benefit the trustee manages the trust property. Here, Daniel predeceased his mother, and thus cannot be the beneficiary of this trust. The gift to the trust thus "lapses," in legal parlance.

(What if Anna Nicole will had left property to Daniel outright -- rather than in a trust? The very same problem would exist. A bequest to a beneficiary who predeceases the testator also "lapses.")

A lapsed gift must pass to someone else -- an alternative beneficiary specified in the will, the residuary legatee (that is, the beneficiary who is left "all the rest and residue" of an estate), or, if an applicable anti-lapse statute applies, the beneficiary's descendant. In this case, none of these alternative routes apply. Anna Nicole's will does not provide an alternate beneficiary, Daniel himself was the residuary legatee, and Daniel had no descendants.

The other possible route for a lapsed bequest -- the one that will apply in this case -- is that the property passes via the rules of intestacy (that is, death without a will). A jurisdiction's intestacy laws provide a kind of estate plan by default. That plan will dictate who gets what when a person dies without a valid will disposing of the entirety of her estate.

Here, since the will leaves everything to someone who is not eligible to take his share from the property that is the subject of the will (Daniel), then Anna Nicole's entire estate should and must pass through intestacy. Put another way, not even part of the will's bequest can be valid, for it all lapsed due to Daniel's death.

Dannielynn: A Pretermitted Child?

Anna Nicole's will includes a provision that states she has intentionally omitted any spouse or child (existing or future born or adopted) not specifically mentioned in the will.

The media has made much of this provision, since it is a clause more often found in men's wills than women's. The fear for a male testator is that his death will precipitate previously unknown children of his from surfacing to claim an inheritance. Women, in contrast, rarely (if ever) have children they don't know about -- and less often choose to disinherit those they do know about.

Some have speculated that Anna Nicole must secretly, somewhere, have another child she was trying to exclude. However, the more likely explanation for this provision is a much less intriguing one: It is simply that her lawyer wrote a "boilerplate" will, which she probably never read (or at least, did not read carefully enough to raise this issue) before signing.

What does such a provision mean for a child like Dannielynn -- born 5 years after execution of her mother's will?

To begin, children have no right against disinheritance in the United States -- only a right in some jurisdictions against accidental disinheritance. To protect against the latter, many states permit a "pretermitted" child to claim a share of a deceased parent's estate, even though the parent died with a will purporting to leave everything to others.

Who counts as a "pretermitted child"? Under many such statutes, only a child born after execution of the will, since that is the kind of child most likely to have been omitted by accident -- that is, by a simple slip of memory by which the will is not revised -- rather than by intent.

Dannielynn was indeed born after the will's execution. Thus, the presumption would be that she was accidentally omitted from her mother's will, and the court would remedy that omission by effectively writing her back into the will. But there's a twist: What about that rare-for-women provision in the will expressly disinheriting future-born children? Most courts would say the provision overcomes the presumption, and thus, Dannielynn, indeed, was validly frozen out of the will.

In this case, that would seem unfortunate and unfair. Photos and testimony make it clear that Anna Nicole doted on Dannielynn, and would never have intentionally disinherited her. Evidence also indicates both that Anna Nicole's death was unexpected, and that she was simply in no state of mind to be remembering things like the need to update her will at any rate. The idea that Anna Nicole intentionally disinherited Dannielynn is ludicrous.

Fortunately, though, there is yet another twist to the story.

Anna Nicole's Intestate Heir: Dannielynn

That is because, in this case, Dannielynn has another basis for claiming a share of the estate.

As I discussed above, the will gives everything to Daniel; the bequest of the entire estate fails because he predeceased Anna Nicole; and thus Anna Nicole's estate falls into intestacy. And in intestacy, Dannielynn is Anna Nicole's sole heir -- that is, unless proof arises that Howard K. Stern and Anna Nicole were legally married.

(Some reports say so, but none have been substantiated as of yet, so I will assume for these purposes that the two were unmarried.)

Intestacy statutes dictate who (typically, among the spouse and blood relatives) is entitled to the estate, and in what order. Here, since I am assuming Anna Nicole died single, Dannielynn is first in line. In addition, Dannielynn is not required to split the estate with Anna Nicole's mother, Virgie Arthur.

(This order is quite typical: Usually, a surviving spouse is first in line; lineal descendants -- children, grandchildren, and so on -- are second; and parents are third. Spouses and descendants sometimes share. If there are no descendants, a spouse might share an estate instead with the decedent's parents. But a descendant does not have to share with the deceased's parents.)

The Only Way Dannielynn Could (But Won't) Lose: A Finding of a "Negative Will"

There is only one theoretical way around the result that Dannielynn gets everything: a find of a "negative will."

A "negative will" has the effect of excluding a person not only from inheriting under a will, but also from collecting anything through intestacy. A classic example is a will that says only "My brother John shall have nothing." The testator's estate would pass through intestacy -- since the will does not dispose of the estate -- but John would be cut out of the intestate line of succession.

Is Anna Nicole's will a "negative" will with respect to Dannielynn, because it disinherits all future born children? One might argue this, but the argument is unconvincing: There is no basis for reading this particular disinheritance clause as reaching outside of the will to reach an intestate succession, as well.

Nor, as noted above, does it seem remotely likely that it would have been Anna Nicole's intent to disinherit her authentic and beloved future children. If Anna Nicole even read the clause, she probably would have seen it as protecting her beloved, authentic son Daniel against fraudulent claims against the estate by other purported children. Surely she would not have wanted the unhappy accident of Daniel's death, plus the oversight of forgetting to include Dannielynn, to leave her beloved, authentic child Dannielynn out in the cold!

Dannielynn, thus, should take everything. How much will that be? That will turn, in large part, on the outcome of the litigation over J. Howard Marshall's estate, (which I have written about in this prior column and this one), which is currently pending before the U.S. Court of Appeals for the Ninth Circuit.

The Paternity of Dannielynn: A Case That Will Heat Up Soon

With the body buried and the will interpreted, we are left with only Dannielynn's parentage to ascertain. We are, frankly, no closer to learning the true identity of Dannielynn's father then we were when I wrote an earlier column just after her death.

The same three men -- Howard K. Stern, Larry Birkhead, and Prince Frederick von Anhalt -- are still claiming paternity, and even her late husband, J. Howard Marshall II (via frozen sperm) has not been ruled out.

With Anna Nicole's burial soon to be behind them, the parties can soon shift their focus to the paternity suit pending in a California court, and the question of who will raise Dannielynn.


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.