Friday, February 16, 2007

the pressing issues of the day

Of course I'm talking about Anna Nicole Smith's will, which was just released today. How exciting when current events bear so particularly on the nuances of my studies.

This is a particularly interesting situation involving one of those twists of fate that no one would have imagined: Anna Nicole Smith willed her entire estate to her son. But he died before her! What to do, what to do!

This raises at least two problems that come directly out the Wills outline I'm looking over right now. One: lapse. Lapse is what happens when a devisee (someone who is supposed to get a gift under a will) dies before the testator (the dead person with the will). At common law, the gift simply lapsed and passed on to the testator's residuary devisee's or heirs. But now most states have anti-lapse statutes which save the gift and pass it on to the dead-devisee's descendents.

According to the story, the will gives the estate to Smith's long-time companion, Howard K. Stern, to hold in trust for her son Daniel. But now that Daniel is dead, what will happen? I guess it all depends on whether or not Florida has an anti-lapse statute.

The other issue raised here is that of the pretermitted child, ie: the child left out of the will. As we all know, Smith had a daughter just last year. However, not only does her will, which was drafted in 2001, fail to mention her daughter, it goes one step further with this language: "I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted." Ouch.

So here's the pretermitted child info, and then you'll see how harsh that language is. The general rule is that a parent is allowed to disinherit a child if she wants to, but many states have ennacted pretermitted child statutes to protect children from unintentional disinheritance. Depending on the laws in Florida, where the will, presumeably, will be probated, Smith's daughter may or may not be protected. Unfortunately, that language in the will seems pretty damning. It almost seems to be a clause specifically included to prevent a court from determining that any later-born child had been unintentionally disinherited. However, I don't know how these things actually work in practice.

We're left with lots of questions: will an anti-lapse statute preserve the gift to Smith's dead son? Will a pretermitted child statute reserve a share for Smith's living daughter? If the first question is answered yes, and the second no, will the dead son's living half-sister be able to inherit anything from *him*? Complicated. I don't know the answers.


Anonymous Shelley said...

I had a ton of fun finding the legal issues in the will. But the will is going to be probated wherever she owns real property -- it could be a serious mess, with different results in different locales (vis a vis the real property, anyway).

How lovely and ironic she left behind will contest when she died.

6:09 PM  
Blogger Melinda Barton said...

I'm not sure about Florida, but in some states (Louisiana, for instance), a person cannot disinherit a child under the age of 23. Louisiana's law used to state that you couldn't disinherit your child at any age, but the age limit was added in the late nineties. I think it would be a travesty of justice if this small passage deprives the child of her rightful inheritance. Surely, Anna probably included that phrase because she'd never intended to have another child.

5:31 AM  

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