“These proceedings are the poster child for why it is necessary for every individual—whether or not an international celebrity—to make proper arrangements to avoid litigation upon their demise. With proper planning by Anna Nicole Smith, much of the dispute before the court would not exist[.]” Broward County Probate Judge Larry Siedlin, February 22, 2007, In re Vicki Lynn Marshall, a/k/a Anna Nicole Smith (opinion attached as Appendix 1) Lesson One: The Estate of Elvis Presley Late last year, the Memphis Commercial Appeal reported a bizarre probate case that should have been avoided by appropriate probate planning involving the estate of Elvis Presley. The estate of Elvis Presley’s father, Vernon Presley, was reopened by a woman (Eliza Presley) who testified she had DNA proof she is Vernon Presley’s daughter and Elvis’ half-sister. Vernon Presley died in 1979 at age 63. Elvis had died two years earlier at age 42. The woman testified that she obtained DNA of Elvis from an envelope that went to her several months ago by a man named Jessie Presley. This DNA, according to the woman, along with samples from a Presley cousin, showed she is the daughter of Vernon Presley. Eliza Presley’s birth mother (Florence Sharp Clark of Oregon) said she moved to Texas in 1962 when she learned she was pregnant by another Memphis man and that she gave her daughter up for adoption. The Memphis news reported that she said she knew Elvis and was often at Graceland, but there was no romantic involvement with him or his father. Therefore, according to the woman’s lawyers, she is entitled to any money left in the estate and to also be legally declared the daughter of Vernon Presley. Legal Issues: Probate litigation frequently presents shocking fact patterns and complicated legal issues. The Eliza Presley matter was no exception. Some interesting facts raised red flags immediately in this case that were used by the probate litigation lawyers to quickly dispense with the case in probate court: First, the lawyers discovered that the woman had just recently changed her name to Eliza Presley (her name until recently had been Alice Elizabeth Tiffin). Second, it became evident that there were no assets remaining in the estate. Third, there was an issue as to whether a child adopted at birth has legal standing for inheritance from her biological parents. 1.) Jurisdiction: The primary legal hurdle for Eliza’s lawyers was their effort to convince the court that it had jurisdiction to decide her claims. Since the estate was closed many years ago and there weren’t any assets left in the estate, they would have to try to pry open the courthouse doors and blow the dust off the old estate court file for the judge to read. In Florida, this is accomplished by filing a petition to reopen a probate estate under the Probate Code. 2.) Betancourt vs. Misjadri A very recent case from the Third District Court of Appeals illustrates the challenging issues involving a court’s discretion in reopening an estate. Betancourt v. Estate of Victoria Misdraji, 34 Fla.L.Weekly D912a (Fla.3rd DCA May 6, 2009) reminded me of the enormous discretion vested in a probate court to reopen an estate. Typically, a probate estate is reopened following the discovery of assets that were not discovered during the original estate administration. The Uniform Probate Code provides for this very scenario: Section 3-1008. Subsequent Administration. If another property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the Court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the Court orders otherwise, the provisions of this Code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration. Florida Probate Rule 5.460 provides that subsequent administration may be ordered by the court if there is newly discovered property, “if further administration of the estate is required for any other reason.” Although the language of the rule implies that the legislature intended for liberal application of the law to allow an interested person to reopen an estate, it is an issue that should be carefully analyzed and handled by an experienced probate litigation attorney in order to avoid the problems encountered by the petitioner in the Betancourt case. In Betancourt, the estate was closed in 2004 when the personal representative (another adult child of the decedent) was discharged. Ms. Betancourt filed written objections to the closing of the estate a month later, and her objections were denied in an order entered in February 2005. Ten months later, Ms. Betancourt filed a “petition for subsequent administration.” After receiving letters from her, the probate judge conducted a status conference on May 3, 2007. Absent a consensus or majority vote among all five adult children of the decedent, the court declined to re-open the estate for further administration. That very day, Ms. Betancourt filed a motion to disqualify the probate judge. The petition for subsequent administration and the motion to disqualify was denied in an order entered May 21, 2007. Ms. Betancourt filed another petition to re-open the estate and to appoint a new personal representative on June 11, 2008, and this was denied on June 16, 2008. The Third District Court of Appeals would not allow Ms. Betancourt to reopen the estate under any circumstances: “The probate judge has been patient and gracious, but Ms. Betancourt must now realize that her claims, objections, petitions, grievances, and correspondence to the court regarding her late mother’s estate must stop. Those issues have been adjudicated and may not be asserted successively.” In my view, had Ms. Betancourt filed an appeal or motion for reconsideration when her original petition to reopen was denied, she may have achieved a different result. As the case points out, however, the trial court is vested with wide discretion in guarding the doors to the probate court.
Can the Presley Estate Be Reopened?
Unlike in Betancourt, Eliza Presley’s lawyers were allowed to reopen the estate of Elvis’s father. This is because the court likely recognized its role in determining the rights of interested persons in connection with their inheritance to an estate or trust. In Florida, this general jurisdiction by the probate court to determine questions involving the rights of interested persons is governed by the declaratory judgment statutes: 1.) Declaratory Judgment Florida Statute Section 86.011 provides:
“The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence of any immunity, power, privilege, or right; or of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.”
Florida Statute Section 86.041 provides:
“Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect thereto, to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or to direct the executor, administrator, or trustee to refrain from doing any particular act in his or her fiduciary capacity; or To determine any question arising in the administration of the guardianship, estate, or trust, including questions of construction of wills and other writings. For the purpose of this section, a “mentally incompetent” is one who, because of mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other mental incapacities, is incapable of either managing his or her property or caring for himself or herself or both.”
Approach the Probate Court as an “Interested Person” Eliza’s lawyers were successful in reopening the estate in large part because they successfully argued that their client if her DNA claims were true, was an interested person in the estate of Vernon Presley and had a right to be heard. As a practical matter, one of the critical points to make early in the probate case is to assert that your client is entitled to probate court relief because he or she is an “interested person” under the Probate Code. “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. . . . The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in any proceedings. See, Fla.Stat.§ 731.201(23). The language of the statute provides that a personal representative is always an interested person in any estate proceeding and also provides that a beneficiary who has already received his or her distribution is not an interested person under the probate code. Fla.Stat. §731.201(21). The Trust Code contains similar provisions in its definitions: The Code’s “beneficiary,” is defined to mean a person who: (a) has a present or beneficial interest in a trust, vested or contingent; or (b) holds a power of appointment over trust property in a capacity other than that of a trustee. Fla.Stat. §736.0103(4) The Code also contains the term “qualified beneficiary,” which is defined to mean a living beneficiary who, on the date, the beneficiary’s qualification is determined: (a) is a distributee or permissible distribute of trust income or principal; (b) would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (a) terminated on that date without causing the trust to terminate; or (c) would be a distributee or permissible distributee of trust income or principal if the trust terminated in accordance with its terms on that date. Fla.Stat. § 736.0103 (14). Following are some examples from decisional case law in Florida deciding the issue of whether a party fits the definition of “interested person”
- A New York law firm representing a Florida estate was an “interested party” in the personal representative’s petition to review the compensation of agents. Rogers & Wells v. Winston, 662 So.2d 1303 (Fla. 4th DCA 1995).
- The son of a beneficiary of a testamentary trust was an interested person who had the standing to seek the revocation of the probate of a will, alleged to have been procured through undue influence, though the will contained a lapse provision, and any interest in the son was contingent because of a life estate provided to the beneficiary. In re Estate of Watkins 572 So.2d 1014 (Fla. 4th DCA 1991).
- The attorney who prepared the testator’s previous will and trust documents, and who was named as an alternate personal representative in the previous will and co-trustee of the trust, had the standing to contest the validity of a subsequent will that removed the attorney from the will and named a previously disinherited stepson as alternate personal representative; attorney would reasonably be expected to be affected by the outcome of the proceeding, in that he would become the personal representative of the estate if the prior will be to be reinstated. Wheeler v. Powers, App. 972 So.2d 285 (Fla. 5th DCA 2008).
- Voluntary guardian for trust settlor who later became personal representative of settlor’s estate possessed a sufficient interest at stake in the controversy such that she had the standing to call for a trust accounting as an intended beneficiary of the trust, just as settlor herself would have, where trust instrument clearly listed payment of settlor’s debts at the time of death and payment of her estate claims and expenses as one of the two stated purposes of the trust. Carvel v. Godley, 939 So.2d 204 (Fla. 4th DCA 2006)
- The minor granddaughter was an “interested person” in paternal grandmother’s estate, and thus maternal grandfather had the standing to petition on granddaughter’s behalf for removal of estate’s personal representative, even if estate contained sufficient funds to satisfy $5,000 bequest to granddaughter, where there was no evidence granddaughter had actually received the bequest. Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. 5th DCA 2005)
- Testator’s children, who were not beneficiaries under current or prior wills, were not interested persons and therefore lacked standing to seek revocation of probate of current will or removal of personal representative based on their claim of lack of testamentary capacity of testator; children did not argue that revocation clause was valid despite testator’s alleged incapacity to execute a current will. Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002 (Fla. 5th DCA 2005).
- The claimant against the estate was an “interested person” in proceedings to approve final accounting and discharge personal representative. Arzuman v. Estate of Bin, 879 So.2d 675 (Fla. 4th DCA 2004).
- The hospital was “interested party,” under the statute governing participation in guardianship proceedings, and thus was entitled to intervene in a guardianship proceeding involving incapacitated, an undocumented alien who was being treated in hospital; hospital bills for alien exceeded one million dollars and, except for about $80,000, which had been paid by Medicaid for emergency care, there were no funds available to pay for alien’s care. Montejo v. Martin Memorial Medical Center, Inc., 874 So.2d 654 (Fla. 4th DCA 2004),
- The adult son of testator’s deceased husband was testator’s “heir,” pursuant to terms of will devising to him one-half share in a condominium, regardless that he was lower in intestacy hierarchy than testator’s daughter who received other one-half shares, and thus, his one-half share was entitled to homestead exemption from intestate’s creditors. Traeger v. Credit First Nat. Ass’n, 864 So.2d 1188 (Fla. 5th DCA 2004)
Adoption out of the Presley clan The final hurdle for Eliza’s lawyers was the issue of whether her legal adoption as a child terminated her inheritance rights from Vernon, she claimed biological father. Although the Memphis court did not decide this issue, had her claim been brought in Florida, it most certainly would have been no. This issue is governed by statute in Florida. Fla.Stat. § 63.172 provides that adoption terminates all legal relationships between the adopted person and his or her relatives, including the birth parents, except a birth parent who is a petitioner; the adopted person thereafter is a stranger to his or her former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship. An exception to this rule has been carved out for biological parents who designate their children (who have been subsequently adopted and have lost their inheritance rights) on certain non-probate assets. See, Leonard v. Crocker 661 So.2d 1244 (Fla., 3rd DCA 1995) holding that designation of a parent’s daughter as beneficiary of an Individual Retirement Account (IRA) did not lapse upon the daughter’s subsequent adoption and name change; describing the beneficiary by birth date and social security number expressly designated decedent’s former daughter as the beneficiary. Lesson Two The Estate of J. Howard Marshall II Anna Nicole Smith A lot of heads turned when the United States Supreme Court issued its opinion in Marshall v. Marshall, 547 U.S. 293 (2006). Legal scholars and practitioners were surprised at the court’s holding that a federal district court had equal jurisdiction with state probate courts over tort claims under state law. The case also drew an unusual amount of interest because the petitioner was former Playboy Playmate and celebrity Anna Nicole Smith (legal name Vickie Lynn Marshall). Many people are familiar with the details of the case: Vickie Lynn Marshall (Vickie), a.k.a. Anna Nicole Smith, was the surviving widow of J. Howard Marshall II (J. Howard), who died without providing for Anna Nicole in his last will and testament. According to Anna Nicole, Howard intended to provide for her through a gift in the form of a “catchall” trust. On the other side of the case was E. Pierce Marshall (Pierce), J. Howard’s son, who was the ultimate beneficiary of J. Howard’s estate plan. While the estate was subject to ongoing Texas Probate Court proceedings, Anna Nicole filed for bankruptcy in California. Pierce filed a proof of claim in the Federal Bankruptcy Court, alleging that Anna Nicole had defamed him when, shortly after J. Howard’s death, her lawyers told the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father’s assets. Anna Nicole also filed a claim that Pierce had tortiously interfered with a gift she expected from J. Howard. After a trial on the merits, the court entered judgment for Anna Nicole and awarded her substantial compensatory and punitive damages. Pierce then started the case’s trip to the Supreme Court by filing an appeal arguing that Anna Nicole’s tortious interference claim could be tried only in the Texas probate proceedings based on the “probate exception” to federal jurisdiction. The Supreme Court examined the matter and recognized the existence of a probate exception to federal jurisdiction, however “a federal court has no jurisdiction to probate a will or administer an estate, … it has [long] been established … that federal courts of equity have jurisdiction to entertain suits ‘in favor of creditors, legatees and heirs’ and other claimants against a decedent’s estate ‘to establish their claims’ so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” The Court next described a probate exception of distinctly limited scope: “[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of the property in the custody of a state court, … it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court.” The Court believed that Anna Nicole’s claim did not involve the administration of an estate, the probate of a will, or any other purely probate matter. Instead, Anna Nicole’s claim alleged the widely recognized tort of interference with a gift or inheritance. She was seeking an in personam judgment against Pierce, not the probate or annulment of a will. The Court observed that trial courts, both federal and state, often address the conduct of the kind Anna Nicole alleges. State probate courts possess no “special proficiency” in handling such issues. The new scope of the exception after Marshall can best be summed up by the following passage from Marshall:: “when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction” Important to probate litigators is the problem created by J. Howard’s Marshall’s probate dispute, which arguably could have been avoided by simply expressing his intent for Anna Nicole in his will. Marshall’s mistake ultimately resulted in opening the courthouse doors for many new tort claims arising from probate disputes. After Marshall the law seems well settled that tort claims involving probate matters may be brought in federal court so long as they don’t interfere with a state probate court’s jurisdiction over property. For example, a recent Florida federal court allowed a claim to be brought in its jurisdiction by an estate administrator against another estate administrator for money damages resulting from his alleged breach of fiduciary duty and conversion. Kelley v. Kelley 2006 WL 3922104 (Bankr.M.D.Fla.). This holding is in line with some federal court’s view that money damages could be sought in federal court against probate administrators, heirs, etc., so long as the recovery was not sought from the estate. For example, see Breaux v. DiSlaver, 254 F.3d 533 (5th Cir. 2001)( holding that district court could exercise diversity jurisdiction over a suit by heirs against the administrator of decedents’ estates, in which heirs sought damages against administrator personally for his alleged fraud and breach of fiduciary duty, where any judgment would be satisfied from administrator’s own property and not from that of estates, one of which had already been closed; probate exception to federal diversity jurisdiction did not apply.) Also, a recent post-Marshall decision from the Sixth Circuit, Wisecarver v. Moore, 489 F.3d 747 (6th Cir.2007) explained that an undue influence claim would not fall within the scope of the probate exception if that claim sought in personam jurisdiction over a defendant for money damages. see also Masood v. Saleemi, 2007 WL 2069853 (2007)( (claims that sound in tort does not fall under the probate exception). Simply stated, claims can be brought in federal court involving probate matters if a couple of conditions are met. First, the relief sought cannot involve the administration of a probate estate or the probate of a will. Second, the claim in federal court cannot seek to reach property that is in the custody of a state court. The greatest and most lasting benefit of Marshall in my view is that it made clear federal courts had been previously been applying the probate exception in an overly broad scope. Lesson Three Estate of Anna Nicole Smith More recently, Anna Nicole Smith contributed to Florida’s probate jurisprudence following the legal dispute that ensnarled Broward County in Judge Larry Siedlin’s courtroom. The dispute in Broward County’s probate court focused on who would undertake, and how and when, to dispose of the remains of Anna Nicole Smith’s body following her death at the Hard Rock Casino. Disputes concerning the body parts of decedent’s are frequently at issue in probate court. For example, I recently encountered a dispute in the context of a paternity proceeding in a probate estate as to who has the rights to a decedent’s blood samples that were drawn during an autopsy. The answer was critical to the establishment of my client as the decedent’s biological child and important in assessing all the parties’ ultimate rights to the Decedent’s Homestead Property. The Florida Supreme Court has never directly dealt with the issue, which implicates not just the parties involved in the dispute (in my case, the Decedent’s sister, was the Personal Representative and my client was the biological son attempting to establish paternity) but also involves medical examiners, law enforcement, state attorneys, pathologists and surgeons, and funeral homes. Typically, these types of disputes arise when a coroner retains an organ (e.g., a brain) following a forensic examination to determine the cause of death and then disposes of the organ while releasing the body to the family. This occurrence is so common that a class action suit was recently filed in federal court against all county coroners who had removed, retained, and disposed of body parts without prior notice to next of kin. The question is not whether the coroners/medical examiners mishandled or abused the body; it is whether the coroner’s failure to give the decedent’s next of kin the opportunity to retrieve a retained organ violates the next of kin’s due-process rights. The Shilling v. Herrera 952 So. 2d 1231 (Fla. 3d DCA 2007) opinion arguably recognizes a cognizable claim to due process rights for the next of kin to a Decedent’s property. Does this extend or otherwise apply to a Decedent’s organs? The analysis begins with the answer to the question of whether Florida law gives the relatives a property interest in the Decedent’s body parts. Board of Regents of State Colleges v. Roth 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. The due process clause only protects those interests to which one has a “legitimate claim of entitlement.” Id. at 577. This has been defined to include “‘any significant property interests,’ Boddie v. Connecticut, 401 U.S. [371] at 379 [91 S. Ct. 780, 28 L. Ed. 2d 113 (1971)], including statutory entitlements. See Bellv. Burson, 402 U.S. [535] at 539 [91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)]; Goldberg v. Kelly, 397 U.S. [254] at 262 [90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)].” Fuentes v. Shevin, 407 U.S. 67, 86, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). To determine whether the Decedent’s next of kin’s interest in the body organs (e.g., brain, blood, tissue) rises to the level of a “legitimate claim of entitlement” protected by the due process clause, one must examine the laws of the state of Florida. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). In Roth cited above, the Supreme Court stated that property interests protected by the due process clause “are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law . . . .” 408 U.S. at 577. A majority of the courts confronted with the issue of whether a property interest can exist in a dead body have found that a property right of some kind does exist and often refer to it as a “quasi-property right.” In re Estate of Moyer, 577 P.2d 108, 110 n.5 (Utah 1978); see, e.g., Arnaud v. Odom, 870 F.2d 304, 308 (5th Cir. 1989), cert. denied sub nom. Tolliver v. Odom, 493 U.S. 855, 110 S. Ct. 159, 107 L. Ed. 2d 117 (1989) (”Louisiana has indeed established a ‘quasi-property’ right of survivors in the remains of their deceased relatives.”); Fuller v. Marx, 724 F.2d 717, 719 (8th Cir. 1984) (”Under Arkansas law, the next of kin does have a quasi-property right in a dead body.”) (Culpepper v. Peral Street Bldg., Inc. (Colo.1994) 877 P.2d 877 (No property right held by parents in their son’s dead body that would support a claim for conversion where son’s body mistakenly cremated); Shults v. the United States (D.Kan.1998), 995 F.Supp. 1270 (applying Mississippi law, the parents of a decedent upon whom an autopsy had been performed filed suit claiming, among other things, a property interest in the body’s organs (including brain and heart) that had been removed during the autopsy (and later incinerated) and not included with the body for burial. The district court held that no property right exists in a dead body that would support an action for conversion. The court concluded that the right in remains recognized by Mississippi law is the family right to possess the body for burial and that that right does not create a property right in the organs removed for examination.Id., 995 F.supp. at 1275. The Florida Anatomical Gift Act codified at Fla.Stat. §765.510 et seq. gives the next of kin the power to make an anatomical gift of any part of the body of the decedent, absent notice of the decedent’s contrary indication. Further, a family member more closely related to the decedent has the right to prohibit any anatomical gift from being made by a less closely related family member. The statute provides: “(2) a member of one of the classes of persons listed below, in the order of priority stated an in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent’s body for any purpose specified in §765.510: (a) The spouse of the decedent; (b) An adult son or daughter of the decedent; (c) Either parent of the decedent; (d) An adult brother or sister of the decedent; (e) A grandparent of the decedent; (f) A guardian of the person of the decedent at the time of his or her death In my view, the opinion in Schilling vs. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) coupled with the Florida Legislature’s enactment of the Uniform Anatomical Gift Act (Laws 1974, c. 74-106, § 1; Laws 1975, c. 75-20, §45; Laws 1984, c.84-264, §3. Renumbered from §732.910, by Laws 2001, c. 2001-226, §60, eff. Jan. 1, 2002, and codified at Florida Statutes § 765.510 et seq. may provide the state-law predicate for recognized due process right for a family to a decedent’s body parts. Simply stated, since the Schilling Court recognizes a due process right by the decedent’s next of kin to be timely notified of the Decedent’s death and the commencement of probate proceedings to divide and distribute the Decedent’s property, it necessarily follows that the next of kin receive sufficient notice that affords them the opportunity to retrieve body parts following forensic examination for an autopsy. When Schilling, the United States Supreme Court cases cited above regarding due process, and the Florida Anatomical Gift Act are taken together, I believe it demonstrates that in Florida the next of kin have the right to dispose of the body by making a gift of it, to prevent others from damaging the body, and to possess the body for purposes of burial. Surely, the law should treat a decedent’s remains as not merely property, but something more. It should then be required that the next of kin have a due process right to be notified before body parts are disposed of for the sake of convenience. Where Should Anna Nicole Be Buried? The pre-burial dispute in Broward County over Anna Nicole Smith’s remains, reflect a different nature of the arguments that probate courts face when dealing with the determination of who has the final word about how, when, and where to dispose of a dead body. Daniellyn, Anna Nicole’s minor child, and sole heir to her estate (Anna’s son died just days prior to her own death) were appointed a guardian ad litem to assert her rights in the probate court. Anna Nicole died a widow. Virgie Arthur, Anna Nicole’s mother, and Daniellyn’s maternal grandmother asserted that she was the “next of kin” and was entitled to make legal decisions regarding disposing of Anna Nicole’s body. Arthur asked Judge Siedlin to ship Anna Nicole’s body to Texas for burial. Howard K. Stern, who lives in the Bahamas, is the person named on Daniellyn’s birth certificate, although paternity was being challenged in several different venues. He also submitted to Judge Siedlin that he alone had the legal right to determine where Anna’s body would be buried, and he petitioned for the release of her body to him so that she could be buried in the Bahamas next to her brother. Larry Birkhead also appeared in the action and claimed that he should have the right to determine Anna’s ultimate resting place based on his long romantic relationship with Anna. In fact, Birkhead claimed that he, not Stern, was Daniellyn’s biological father. Birkhead believed Anna should be buried in California. Judge Siedlin conducted no less than seven hearings in an atmosphere that ensnarled the entire Broward County Judicial complex for weeks. Judge Seildin, who retired shortly after the conclusion of this case, ultimately ruled that Daniellyn had the sole right to determine the disposition of Smith’s remains and directed the guardian ad litem to act consistently with the best interest of that child. Arthur filed an emergency appeal to the Fourth District Court of Appeals who affirmed Judge Seidlin using the the “tipsy coachman” doctrine, which allows an appellate court to affirm a trial court that “reaches the right result, but for the wrong reasons” so long as “there is any basis which would support the judgment in the record.” Robertson v. State 829 So.2d 901 (Fla. 2002) (citing Dade County School Board v. Radio Station WQBA 731 So.2d 638l (Fla 1999). Judge Siedlin had found that Arthur and the guardian ad litem, on behalf of the child, both qualified as a “legally authorized person” as that term is defined in Florida Statutes section 497.005 (37). In finding that both were legally authorized, Florida Statutes section 406.50(4) directs the priority to the remains pass in accordance with section 732.103 of the probate code. Under section 732.103, the lineal descendants of the decedent have priority. On appeal, Arthur argued that she, alone, is the “legally authorized person” to take possession of the remains, and Judge Siedlin erred in finding that the guardian ad litem is an additional “legally authorized person.” The phrase “legally authorized person” is found in Fla.Stat. § 497.005(37), which provides: (37) “Legally authorized person” means, in the priority listed, the decedent, when written inter vivos authorizations and directions are provided by the decedent; the surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased; a son or daughter who is 18 years of age or older; a parent; a brother or sister who is 18 years of age or older; a grandchild who is 18 years of age or older; a grandparent; or any person in the next degree of kinship. In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; …. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of anyone legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.” The court then noted that in the event more than one legally authorized person claims a body in the custody of the medical examiner for interment, section 406.50(4) provides that the requests shall be prioritized in accordance with section 732.103. Florida Statute section 732.103 of the Florida Probate Code provides that the part of the intestate estate not passing to the surviving spouse under section 732.102, or the entire intestate estate if there is no surviving spouse, descends first to the lineal descendants of the decedent, and if there is no lineal descendant, to the decedent’s father and mother equally, or to the survivor of them. Judge Siedlin relied upon section 406.50(4) to determine that Dannielynn had priority over Arthur. Arthur’s position on appeal was that dependence on section 406.50(4) was an error in this case as she is the sole “legally authorized person” as contemplated by section 497.005(37), and as such, she is entitled to make decisions regarding the disposition of the decedent’s remains. The appellate court found that neither section 497.005(37), nor section 406.50, control the outcome of the case. The Fourth District stated that in the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition. “Having recognized certain property rights in dead bodies, many courts have announced the rule that a person has the right to dispose of his own body by will. However, courts, while paying lip service to the doctrine of testamentary disposal, have in certain instances permitted the wishes of the decedent’s spouse or next of kin to prevail over those of the testator. In other instances, courts have accepted and acted upon evidence that indicated that the decedent’s wishes concerning the disposition of his body had changed since the execution of his will.” Conclusion For those persons interested, the results of Anna Nicole’s autopsy are available online. The legal battles in Broward County described above took so long that it affected the delay in embalming her body. There was eventually a closed casket funeral. Anna Nicole Smith’s last will and testament, drawn up in April 2001, named her son Daniel as the sole beneficiary of her estate, specifically excluded other children, and named Howard K. Stern as the executor. It indicated personal property valued at $10,000 and real property valued at $1.8 million (with a $1.1 million mortgage) at the time of death. A petition to probate Ann Nicole Smith’s will was filed in Los Angeles County Superior Court. The petition to probate lists Larry Birkhead as a party with interest to Anna Nicole’s estate. Legal battles, as expected, are ongoing. On April 2, 2009, Us Weekly reported that Anna Nicole’s father Donald Hogan is considering filing a wrongful death lawsuit against Stern. Hogan was quoted as saying that while he blames Stern in Anna Nicole’s death, he doesn’t care “if [he] get[s] a dime out of [the lawsuit].” A six-foot-tall black granite monument was installed at Ann Nicole’s Smith’s grave in the Bahamas, as of February 2009.
