As the Anna Nicole Smith saga takes its latest bizarre twist inside a South Florida courtroom, prominent South Florida trusts and estates litigators – Richard Milstein & Shane Kelley – were tapped by Broward County Judge Larry Seidlin to help him sort through the conflicting claims for custody of Anna Nicole Smith’s body. CNN reported in In court: Who will bury Anna Nicole Smith? on these latest developments. For those of us practicing in South Florida, it’s fun to spot our colleagues in the news. Here’s an excerpt from the linked-to story:
FORT LAUDERDALE, Florida (CNN) — Anna Nicole Smith wanted to be buried in the Bahamas, next to her son, and bought a burial plot there, according to attorneys for her longtime companion, Howard K. Stern.
Smith’s estranged mother, Vergie Arthur, wants to take the body home to Texas to be buried with family members.
The two sides faced off in Broward County Circuit Court on Thursday at a probate hearing that bounced from custody of the body to DNA sampling to whether a baby can be considered next of kin under Florida law.
With several attorneys arguing loudly around a conference table, Judge Larry Seidlin tried to sort through a tangle of legal arguments and competing interests.
. . . . .
Some progress was made: The judge appointed a guardian, Miami attorney Richard Milstein, to protect the interests of Smith’s infant daughter, Dannielynn. He also appointed an administrator, Shane Kelley, a Fort Lauderdale lawyer, to sort through the competing interests and recommend who will bury Smith, and where.
An evidentiary hearing is scheduled for Tuesday.
Smith’s body is being kept under refrigeration at the medical examiner’s office in Dania Beach. She is likely to be embalmed there as early as Friday. But any decision about releasing her body for burial isn’t likely until next week at the earliest.
So who gets the body under Florida law?
What law applies will likely turn on what jurisdiction Anna Nicole Smith is deemed to have been a resident of when she died. I don’t think Florida is in the running, but assuming somehow Florida law ends up governing the substantive rights at play here, then the 4th DCA’s 2005 opinion in Cohen v. Guardianship of Cohen, 30 Fla. L. Weekly D664 (Fla. 4 DCA March 9, 2005) will likely determine the outcome. I wrote about this opinion here.
Anna Nicloe Smith apparently executed a will prior to her death (see here). However, even if her will speaks to her wishes regarding her burial, the inquiry does not necessarily end there. In Cohen the 4th DCA held that a testator’s will does not control where he or she is buried if there’s clear and convincing evidence reflecting that the testator’s true intent was to be buried elsewhere. In other words, the parties need to present “clear and convincing” evidence to substantiate their claims to Anna Nicole Smith’s body. Here’s how the Cohen court stated the rule:
[A] testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition of his body.
I assume whatever ruling is entered by Judge Seidlin it will get appealed. If it is, the appeal will be heard by none other than the 4th DCA, the same appellate court that decided Cohen. Yes, Anna Nicole Smith’s on-going contributions to U.S. probate-litigation jurisprudence continue unabated (I wrote here about her May 2006 U.S. Supreme Court win).
P.S. For additional commentary, see Anna Nicole Smith – Guidance for Burial Disputes (published in Steve Leimberg’s Estate Planning Newsletter). As an extra bonus, this linked-to item also contains a link to Anna Nicole Smith’s just-released will.