February 9, 2007, - 3:08 pm
Anna Nicole Smith Death is Like a Law School Exam
By Debbie Schlussel
I’m not concerned in the least with the Anna Nicole Smith death. And actually, I believe her kid will be a lot better off growing up with a different parent.
That said, for those of you who never went to law school, her death is one of these bizarre stories you often see on a law school exam, as I discussed on my regular Thursday appearance, yesterday, on KNZR-AM 1560 Bakersfield’s “Jaz McKay Show.”
Smith’s case would be a Trust & Estates exam. There are so many questions regarding who gets the money and various conditional answers, all of which would be the answer to the law school exam question:
1) Did she have a valid will?
That will help decide who will receive her assets and have the privilege of continuing years of lawsuits for the money of the ancient, late billionaire she married.
2) If so, who wrote the will and was she not under the influence of drugs when she signed it?
That will decide whether the will is valid and enforceable. If Howard K. Stern wrote the will, he may have had “undue influence,” and the will could be invalidated. Plus, there are huge conflict of interest issues. Ditto if she was on drugs, as she normally is.
3) Is she truly, legally married to lawyer Howard K. Stern and in what state or country (they were living in the Bahamas)?
If legally married, he will be a legal heir to her fortune (unless written out of a valid will if she had one–in which case, in some states (like Wisconsin, where I went to law school), he’d still be entitled to take a portion of her fortune as her legal husband). It will depend where they were married and on the laws at that locale whether the marriage is legal.
4) In which state or country (she was living in the Bahamas) was the will signed? In which state will her estate be filed?
That could effect whether the will is valid (different states have different laws on that).
5) In which state or country (she was living in the Bahamas) was she a citizen or legal resident?
That could effect how her estate is doled out and who is an heir, etc.
6) Who is the real father of her daughter?
The daughter is an heir (unless written out of a valid will, if there is one). If that’s the case, whoever is proven to be the father will control a lot of money as the child’s guardian and perhaps all of it if Howard K. Stern is not her legal husband or is written out of the will.
If the father of the child cannot be determined–the men claiming paternity are excluded through DNA tests and Howard K. Stern is not her legal husband–and Smith eith did not have a valid will or did not specify guardianship in a valid will, then Smith’s estranged mother would be entitled to take custody of Smith’s daughter.
7) What about Smith’s mother, who she disowned?
She’s a legal heir in most states, unless written out of a valid will, and will be entitled to a portion of the proceeds.
If the father of the child cannot be determined–the men claiming paternity are excluded through DNA tests and Howard K. Stern is not her legal husband–and Smith eith did not have a valid will or did not specify guardianship in a valid will, then Smith’s estranged mother would be entitled to take custody of Smith’s daughter.
8) What if Howard K. Stern is the legal husband, but there are questions as to the identity of the father of her daughter (as there are)?
In some states, the law prevents a judicial order for a paternity test, as the child of a legally wed couple, even if the result of an extramarital affair, is presumed to be the child of the husband, in which case–if Howard K. Stern was legally married to Smith at the time of the daughter’s birth–the child is legally the child of Stern, regardless of paternity.
In states where that is still the law, a judge may be barred by law from ordering a paternity/DNA test. And if a judge in a state where that is not the law orders a DNA test, his order will likely be unenforceable in another state, especially in a state where the law does presume that a child born to a wife within a valid marriage is presumed to be the child of her legal husband.
9) What about the fact that Smith is dead as is the octegenarian billionaire she married and his son she was fighting in court?
Her heirs and his heirs can still keep fighting and appealing for years for those billions.
10) What if Howard K. Stern is found guilty of murdering either Smith’s son or her?
Depending upon the law in the particular state, if he murdered her, he will likely be prevented from inheriting her money even if he’s a legal heir (it’s the law most places, which have “Slayer’s Rules” preventing inheritance in those cases). Even if he is accused of murder, but acquitted, a court deciding a will can still use the evidence to deny him property, though. Attorney Neil E. Hendershot has an excellent and interesting explanation of Slayer’s Rules and murder cases where they are enforced.
If he murdered her son (to eliminate a competing heir or for whatever reason), the Slayer’s Rule may still apply because the son was an heir and killing him would benefit Howard K. Stern. Or it may be a different story, and he might still get to inherit the money, depending upon state law (which in some states does not bar convicted murderers from inheriting if their victim is not the person from whom they’d inherit).
I’m not sure if there is a Slayer’s Rule in the Bahamas, so if her estate is domiciled there, that could be a whole different ballgame.
So this is going to be a very confusing and long legal battle that will provide the tabloids with plenty of years of Anna Nicole Smith fodder, regardless of the fact that she’s dead.
Who’d have thought that such a sleazy and messed-up woman could inspire such a great understanding of how trust and estate law is decided?
***
Looks like somebody was ahead of the game in trying to enable a lot of men to cash in on the Estate of Anna Nicole Smith.
Tags: AM 1560, Anna Nicole Smith, Anna Nicole Smith Death, attorney, Debbie Schlussel, estate law, Howard K. Stern, judge, law school, law school exam, law school exam question, lawyer, Neil E. Hendershot, Smith Death, State law, the Bahamas, Wisconsin
Ms Debbie, you said:
“The daughter is an heir (unless written out of a valid will, if there is one)”
Correct me if I’m wrong, but I don’t believe an infant daughter can be written out of a mother’s will.
GOOD QUESTION. YOU MAY BE RIGHT. BUT AGAIN, THAT WOULD DEPEND ON THE LAW IN THE PARTICULAR STATE. MY UNDERSTANDING IS THAT, IN GENERAL, ONE MAY INCLUDE OR SPECIFICALLY EXCLUDE ANYONE FROM A WILL, EVEN MINOR CHILDREN. HOWEVER, I MAY BE WRONG. I DO KNOW THAT IF A WILL WAS EXECUTED BEFORE THE BIRTH OF A MINOR CHILD–AND THAT WILL SPECIFICALLY EXCLUDES ALL PARTIES OTHER THAN THOSE SPECIFIED–THE WILL WILL LIKELY BE SUCCESSFULLY CHALLENGED B/C THE CHILD’S GUARDIAN/ATTORNEY CAN CONVINCINGLY ARGUE THAT THE DECEASED DID NOT INTEND TO EXCLUDE HER MINOR CHILDREN AT THE TIME OF THE MAKING OF THE WILL (AS THEY WERE NOT YET BORN OR FORESEEN). I HAVE ASKED A TRUST & ESTATES LAWYER WHO KNOWS MORE ABOUT THIS THAN ME TO SEE IF HE AGREES. AS FOR MY OTHER LEGAL POINTS, I’M QUITE SURE I’M PRETTY SOLID ON THOSE.
DEBBIE SCHLUSSEL
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UPDATE, 02/11/07: LOOKS LIKE MY ORIGINAL LEGAL OPINION WAS CORRECT. ATTORNEY NEIL E. HENDERSHOT (HIS WEBSITE HERE: http://paelderestatefiduciary.blogspot.com), A RESPECTED TRUST & ESTATES ATTORNEY AND LAW PROFESSOR, WRITES ME THAT A MINOR CHILD CAN, INDEED, BE WRITTEN OUT OF A WILL BY THE CHILD’S PARENT(S):
“In Pennsylvania, it is my understanding that no person — other than a spouse who can take against a will while claiming an elective share — has any ‘entitlement’ to an estate interest in Pennsylvania. A minor child who is the beneficiary of an unsatisfied past support claim can assert it against the estate by a natural parent or guardian, but, presently, is not entitled to a share or to the present interest of support until majority. There are drafts of statutes circulating, but there is no consensus.
I have not made a blog entry because there has not been any development in this area since our PA appellate courts declined to create a claim for support against a deceased parent a few years ago.”
SINCE MOST STATES–WHILE HAVING VARIATIONS IN THE LAW–ARE PRETTY SIMILAR IN MANY OF THEIR LAWS REGARDING WILLS & ESTATES, I WOULD BET THIS IS THE CASE IN MOST STATES.
DEBBIE SCHLUSSEL
Dr.Dale on February 9, 2007 at 5:44 pm