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Contact: Professor Joanna Grossman, Professor of Law,
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Anna Nicole Smith and Her Litigious Legacy
Discussion Paper for Council on Contemporary Families -- March 5, 2007
by Joanna Grossman, Professor of Law,
There were many aspects of Anna Nicole Smith'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 of the Year; the tragic loss of her 20-year-old son just days after the birth of her daughter; and her own untimely death at the age of 39.
As unusual as the way Anna Nicole lived is the number of legal entanglements she left behind. Although she has finally been laid to rest in the
Will Anna Nicole's Estate Include Money from Her Late Husband's Estate?
Anna Nicole first emerged as a celebrity-in-law during the mid-1990s when she made a claim for half of her late husband's estate. At the age of 26, she married J. Howard Marshall II, a Yale-Law-professor-cum-oil-tycoon, who was then 89. He died a year later, in 1995, leaving behind a nearly billion-dollar estate and a will that disinherited his young wife. In the 11 years that followed, Anna Nicole and J. Howard's oldest son, Pierce, fought for control of the estate, in litigation involving multiple courts, many appeals, and varied results. (The litigation outlived both parties, but continues on at the hands of their successors.)
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 prevented from doing so by Pierce's wrongful interference. According to Anna Nicole, she was induced to marry him by a promise that he would leave half of his estate to her. The claim was aired in a
The $88 million ruling was appealed all the way to the United States Supreme Court, which decided that the bankruptcy did have jurisdiction to issue it. But to collect, Anna Nicole's estate must still prove that the ruling should trump the
Who Will Inherit Anna Nicole's Estate?
Whether Anna Nicole has left behind an estate worth fighting over turns largely on the outcome of the litigation over J. Howard's estate. Anna Nicole seems to have spent everything else she earned or was given; even the house she was living in the
Anna Nicole apparently executed a will in 2001 under her legal name, Vickie Lynn Marshall. That will, which has not yet been submitted for probate, leaves the entirety of her estate in a trust for her late son, Daniel. But because Daniel died before Anna Nicole, the bequest to him "lapses." A lapsed (failed) gift must pass to someone else - an alternate beneficiary named in the will, the residuary legatee (the one who is left "all the rest and residue" of an estate), or, to the beneficiary's children in some circumstances. Here, however, none of these alternatives apply.
The will makes no provision for Dannielynn; indeed, it specifically states that all existing or future born or adopted children are intentionally omitted. Had Daniel survived Anna Nicole, would she have been out of luck? That depends on whether she could qualify as a "pretermitted" child. Children have no right to be provided for in a parent's will, but they do have the right not to be overlooked by accident. The intentional omission clause, however, is likely sufficient to preclude Dannielynn from claiming a pretermitted share.
But since Daniel did not outlive his mother, Dannielynn need not rely on a pretermitted child share to inherit. When a will does not dispose of an entire estate - or, in this case, any of the estate - it passes via the rules of intestate succession, which provide a sort of estate plan by default.
Who among her survivors -- her mother, Vergie Arthur, her lover, Howard K. Stern, and her daughter - will inherit? Since no evidence has emerged that Howard Stern was legally married to Anna Nicole, though they had participated in a "commitment ceremony" shortly before she died, he has no claim to her estate. Intestate shares are reserved for a legal spouse or family members related by blood or adoption.
As between Anna Nicole's mother and her daughter, Dannielynn is the clear winner. Although it is not clear which state or country will have jurisdiction over Anna Nicole's estate, typical rules of intestacy dictate the following order of priority among potential takers: spouse, descendants, parents, and then more distant relatives. Although a surviving spouse and child might be forced to share an estate, the existence of a living descendant trumps parents and all more distant relatives. Dannielynn thus trumps Vergie.
Dannielynn should inherit Anna Nicole's estate notwithstanding the provision in her will stating that she had intentionally omitted all future born or adopted children. That provision has no meaning since her estate will ultimately pass outside of the will. Some commentators have suggested the possibility of a "negative will" - one that not only excludes someone from taking under a will, but also under an intestate succession. The relevant clause in Anna Nicole's will, however, is not sufficient to have such broad reaching effect.
What of Dannielynn's illegitimacy? That she was born out of wedlock is no bar to her inheriting from her mother under modern law. Though once barred from parental inheritance completely, nonmarital children today are always granted full inheritance rights with their mothers and can also inherit from their fathers as long as paternity has been established.
Who Will Raise Anna Nicole's Daughter?
When a single mother dies, who takes custody of her child? For Anna Nicole, who left behind an infant daughter, Dannielynn, the question is complicated. Three men have asserted paternity of Dannielynn, and rumors have suggested a fourth contender - the frozen sperm of her late husband, J. Howard.
Dannielynn's birth certificate states that Anna's last lover, Howard K. Stern, is her father. But another man, photographer and ex-lover Larry Birkhead, filed a lawsuit in
The importance of the proceeding to adjudicate paternity of course increased when Anna Nicole died, since Dannielynn has no legal parent at the moment. Howard K. Stern benefits from a presumption of paternity, since his name is on the birth certificate, but genetic proof of paternity will likely resolve this dispute. Since none of the men was married to Anna Nicole or had a long-established parent-child relationship with Dannielynn, the court will resort to biology as the trump card. The
Unless the father turns out to be the long-deceased J. Howard Marshall, the genetic father will likely be awarded custody of Dannielynn as long as he is not proven unfit. Constitutionally, parents must be heavily preferred over third parties in custody fights. If none of the would-be-fathers turn out to be genetically tied to Dannielynn, then one might expect an all-out custody war between Anna Nicole's mother and Howard K. Stern. Neither would have the presumption accorded legal parents, and thus the best-interests-of-the-child would determine who should raise Dannielynn. Though perhaps luckier than an orphan over whom no one is fighting, Dannielynn's prospects for a stable, happy life seem bleak.
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To reach Professor Grossman, email lawjlg@hofstra.edu, 516-463-5241. The legal issues related to Anna Nicole Smith are discussed in more detail in Professor Grossman's columns for FindLaw's Writ, available at writ.findlaw.com/Grossman.
For information about marriage patterns, husband-wife relations, and the treatment of "illegitimate" children in the past, contact: Steven Mintz, National Co-Chair, Council on Contemporary Families; Center for Advanced Study in the Behavioral Sciences, Stanford; author of "Huck's Raft: A History of American Childhood," 713-805-3384; SMintz@UH.edu
Stephanie Coontz, Professor of History and Family Studies, The Evergreen State College; author of "Marriage, a History: How Love Conquered Marriage; 360-556-9223; coontzs@msn.com.
The Chicago-based Council on Contemporary Families is a non-profit, non-partisan association of prominent family researchers and clinicians whose aim is to make recent research on family formation, marriage, divorce, childhood and other family issues accessible to the press and public. For more information visit www.contemporaryfamilies.org.
On May 4-5, The Council will hold its 10th Anniversary Conference at the
