Anna Nicole Smith’s will

Anna Nicole Smith’s will is recently available online at various venues, such as CNN. The will, in interaction with the facts, raises a number of questions. It’s practically a real-life law exam. This post will discuss a few of the many issues raised by the will.

This discussion is limited in a number of important ways. For example, there are messy jurisdictional questions; there may be questions about the existence of other potential heirs (an interesting possibility, raised in this news article); it seems not outside the realm of possibility that a later will or codicil will surface. There are also a whole array of questions falling under the broad umbrella of undue influence or related impropriety. Conspiracy theorists are already suggesting that the lawyer, Howard Stern, orchestrated a complicated web of murder. Even less exotic and more mundane possibilities, like plain vanilla undue influence, could still drastically affect the distribution. Finally, there are big question marks relating to the value of the estate. The $80 million question is the litigation over the estate of Ms. Smith’s late husband. The ultimate value of her estate could vary greatly depending on how those issues are ultimately resolved.

But even setting aside those questions, the will still leaves a number of interesting issues. Questions that come out of the will itself include whether Anna Nicole Smith’s daughter will be treated as a pretermitted child, and the question of how to treat the lapsed bequest to Anna Nicole Smith’s son, Daniel. We can frame the query in a way that highlights these sub-issues. In fact, it makes quite a nice law-exam-style question.

“Anna executes a will in California in 2001. She leaves her entire estate to her son Daniel, to be held under various trust provisions. She also explicitly disinherits any other relatives, as well as any future spouses or children she might have. Her will contains no residuary clause. In 2006, Daniel dies suddenly, leaving no issue. Later in 2006, Anna’s daughter Dannielynn is born. In 2007, Anna dies. How is her estate distributed under California law?”


Is Dannielynn a pretermitted child?

The answer here is “Yes, but.”

Yes, she is a pretermitted child. That is, she is a child born after the execution of the instrument. Such children are often able to inherit under the California statute, taking an intestate share:

21620. Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent’s testamentary instruments, the omitted child shall receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

However, exceptions under the California statute include explicit disinheritance:

21621. A child shall not receive a share of the estate under Section 21620 if any of the following is established:

(a) The decedent’s failure to provide for the child in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.

Given that statutory exception, and the explicit disinheritance on the face of the will, it is clear. Dannielynn does not inherit through the pretermitted child statute.

Does this mean that she is unable to inherit? Not exactly. She cannot take through the will, but she may still be able to claim an intestate share of portions of the estate that pass outside the will.

How is the lapsed gift to Daniel treated?

Good question.

First of all, as a general matter, the deceased do not inherit.

21109. (a) A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument. (b) If it cannot be determined by clear and convincing evidence that the transferee survived until a future time required by the instrument, it is deemed that the transferee did not survive until the required future time.

Okay, so what happens to a lapsed gift? Here, the statute diverges into two branches. If the deceased transferee left issue, then the issue take. If not, then the gift passes to any contingent takers; if there are no contingent takers, it passes to the residuary taker; if there is no residuary taker, it falls into the estate.

21110. (a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee’s place in the manner provided in Section 240. . . . (b) The issue of a deceased transferee do not take in the transferee’s place if the instrument expresses a contrary intention or a substitute disposition. . . .

21111. Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the property is transferred as follows:

(1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the property is transferred according to the terms of the instrument.

(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.

(3) If the transferring instrument does not provide for an alternative disposition and does not provide for the transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent’s estate. . . .

The lapsed gift would go first to Daniel’s issue, but he has none. Next, it would go to the contingent taker, but there is none. Next, it would go to the residuary taker, but again, there is none.

So the most likely answer is, it falls into the estate. Nobody takes under the will, and the entire estate passes in intestacy. From there, we turn to the intestate statute (6401 and 6402). With no surviving spouse, the entire estate passes to the deceased’s children. Which is, in this case, Dannielynn. (And any other children who may be discovered.) So while she doesn’t take under the will (because of the exclusion clause), she stands to take in intestacy. Also, because the property passes in intestacy rather than under the will, the various trust provisions in the will (intended to keep Daniel from receiving all of the property at once) will be ineffective.

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11 Responses

  1. Nevin says:

    This sounds like a noob question, but it seems to me that Daniel (had he been alive) would have been able to demand the whole inheritance under the rule in Saunders v. Vautier instead of being bound by the restrictions set by Anna. Or does Californian law preclude this?

  2. Kaimi says:

    Nevin,

    I’m not aware of any U.S. jurisdictions where the Saunders v. Vautier rule applies. It definitely does not apply in California.

    As a general matter, U.S. jurisdictions favor the Claflin rule, rather than the Saunders v. Vautier rule. And under Claflin, beneficiaries cannot terminate a trust if that would go against a material purpose of the settlor.

    The Claflin doctrine has been modified by statute in a number of jurisdictions, including California, to provide some exceptions. It is still the general baseline, however.

  3. What about relatives of predeceased spouse? says:

    What about Section 6402.5? Didn’t Marshall die less than 15 years ago? And if she gets a portion of that estate, wouldn’t ALL of it be “attributable” to him?

    § 6402.5. Predeceased spouse; portion of decedent’s estate attributable to decedent’s predeceased spouse

    (a) For purposes of distributing real property under this section if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent’s estate attributable to the decedent’s predeceased spouse passes as follows:

    (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

    (2) If there is no surviving issue of the predeceased spouse but the decedent is survived by a parent or parents of the predeceased spouse, to the predeceased spouse’s surviving parent or parents equally.

    (3) If there is no surviving issue or parent of the predeceased spouse but the decedent is survived by issue of a parent of the predeceased spouse, to the surviving issue of the parents of the predeceased spouse or either of them, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

    (4) If the decedent is not survived by issue, parent, or issue of a parent of the predeceased spouse, to the next of kin of the decedent in the manner provided in Section 6402.

    (5) If the portion of the decedent’s estate attributable to the decedent’s predeceased spouse would otherwise escheat to the state because there is no kin of the decedent to take under Section 6402, the portion of the decedent’s estate attributable to the predeceased spouse passes to the next of kin of the predeceased spouse who shall take in the same manner as the next of kin of the decedent take under Section 6402.

    (b) For purposes of distributing personal property under this section if the decedent had a predeceased spouse who died not more than five years before the decedent, and there is no surviving spouse or issue of the decedent, the portion of the decedent’s estate attributable to the decedent’s predeceased spouse passes as follows:

    (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

    (2) If there is no surviving issue of the predeceased spouse but the decedent is survived by a parent or parents of the predeceased spouse, to the predeceased spouse’s surviving parent or parents equally.

    (3) If there is no surviving issue or parent of the predeceased spouse but the decedent is survived by issue of a parent of the predeceased spouse, to the surviving issue of the parents of the predeceased spouse or either of them, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

    (4) If the decedent is not survived by issue, parent, or issue of a parent of the predeceased spouse, to the next of kin of the decedent in the manner provided in Section 6402.

    (5) If the portion of the decedent’s estate attributable to the decedent’s predeceased spouse would otherwise escheat to the state because there is no kin of the decedent to take under Section 6402, the portion of the decedent’s estate attributable to the predeceased spouse passes to the next of kin of the predeceased spouse who shall take in the same manner as the next of kin of the decedent take under Section 6402.

    (c) For purposes of disposing of personal property under subdivision (b), the claimant heir bears the burden of proof to show the exact personal property to be disposed of to the heir.

    (d) For purposes of providing notice under any provision of this code with respect to an estate that may include personal property subject to distribution under subdivision (b), if the aggregate fair market value of tangible and intangible personal property with a written record of title or ownership in the estate is believed in good faith by the petitioning party to be less than ten thousand dollars ($10,000), the petitioning party need not give notice to the issue or next of kin of the predeceased spouse. If the personal property is subsequently determined to have an aggregate fair market value in excess of ten thousand dollars ($10,000), notice shall be given to the issue or next of kin of the predeceased spouse as provided by law.

    (e) For the purposes of disposing of property pursuant to subdivision (b), “personal property” means that personal property in which there is a written record of title or ownership and the value of which in the aggregate is ten thousand dollars ($10,000) or more.

    (f) For the purposes of this section, the “portion of the decedent’s estate attributable to the decedent’s predeceased spouse” means all of the following property in the decedent’s estate:

    (1) One-half of the community property in existence at the time of the death of the predeceased spouse.

    (2) One-half of any community property, in existence at the time of death of the predeceased spouse, which was given to the decedent by the predeceased spouse by way of gift, descent, or devise.

    (3) That portion of any community property in which the predeceased spouse had any incident of ownership and which vested in the decedent upon the death of the predeceased spouse by right of survivorship.

    (4) Any separate property of the predeceased spouse which came to the decedent by gift, descent, or devise of the predeceased spouse or which vested in the decedent upon the death of the predeceased spouse by right of survivorship.

    (g) For the purposes of this section, quasi-community property shall be treated the same as community property.

    (h) For the purposes of this section:

    (1) Relatives of the predeceased spouse conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.

    (2) A person who is related to the predeceased spouse through two lines of relationship is entitled to only a single share based on the relationship which would entitle the person to the larger share.

  4. What about relatives of the predeceased spouse? says:

    Sorry, I can’t read.

    (a) For purposes of distributing real property under this section if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent’s estate attributable to the decedent’s predeceased spouse passes as follows:

    That answered my question. Carry on.

  5. Robert Ritter says:

    Since H.K. Stern is listed as father to Dannielynn on the birth certificate, and how is this going to be challeneged if he is not the biological father? Anna N Smith and the hospital staff mental aspect may be questioned, since she listed Stern as the father.

  6. Scott says:

    Very interesting post. Watching all the news has really confused me on everything that is going on in this case. Your article put a nice perspective on it.

    -Scott

    http://www.thelegalscoop.com

  7. michelle says:

    Here is the question I have been asking myself and have not heard it mentioned on TV yet (or maybe I just missed it.

    How are there soooo many legal issues left undone with the one person closest to Anna Nicole is a lawyer??? Why was the will not updated? Why is there issues with the home in the Bahamas, you would think it would have been given to her in a legal and binding manner. Why are the so many questions about Danielynn, he should have know that just lising him as the father on the birth certificate would not be enough.

    At first I though he may somehow be responsible. But now he stands to loose everything that has been his life for so long, due to legal inconstistancies and incompletions.

    Any comments????

  8. michelle says:

    Here is the question I have been asking myself and have not heard it mentioned on TV yet (or maybe I just missed it.

    How are there soooo many legal issues left undone with the one person closest to Anna Nicole is a lawyer??? Why was the will not updated? Why is there issues with the home in the Bahamas, you would think it would have been given to her in a legal and binding manner. Why are the so many questions about Danielynn, he should have know that just lising him as the father on the birth certificate would not be enough.

    At first I though he may somehow be responsible. But now he stands to loose everything that has been his life for so long, due to legal inconstistancies and incompletions.

    Any comments????

  9. Patce says:

    Just curious, all of this talk re: HKS “killing” Daniel and Anna, wouldn’t it been prudent for him to wait until they were legally married? I feel he would at the very least, been a spouse with some spousal privileges.

  10. isabelta says:

    The fact isThe fact is clear – since the primary beneficiary of her will died prior to inheritance then the exclusion clause applies; meaning, since her son preceded her in death then that potion of her will that leaves her estate to him is intestacy, that part of the will is null and void.

    The remaining parts of the will not impacted by her son’s death are still in effect, meaning her specific exclusions, i.e. future spouse or children, are specifically excluded, so section 6401 and 6402 do not apply because she had a specific exclusion clause that is enforceable congruent with the exception clause.

    So who does her estate go to? Any living relative not specifically excluded under the exclusion clause of her will – for instance, her mother and not her daughter.

    The point is, her exclusion clause is enforceable under the exception portions of her will – it states that only that part of the will which is not enforceable may be negated, and any other part of her will that is enforceable, e.g., exception clause, does indeed remain in effect – so, no money for her daughter and the closet living relative (her mother) receives the estate.

    clear – since the primary

  11. Wedny says:

    I think that the whole thing is just sad with all that was left undone Anna is being forgotten it seemed that she was so lonely in life with all that she had and now that she is gone everyone is fighting for her leftovers and not missing her