It’s been nearly two weeks since Anna Nicole Smith died, yet she still hasn’t been buried. Just as the tabloids gorged on her exploits when she was alive, now they’re feasting on the numerous legal battles her death has spawned. The main issues at stake: who gets the body, who gets the baby and who gets the money. To help sort through the legal morass, Newsweek’s Catharine Skipp spoke with William Torbert “Toby” Muir, a prominent, long-practicing trust and estates attorney in Coral Gables, Fla.
Newsweek: What are the main legal issues?
Muir: There are three. The first question is who gets the body. The county where Anna Nicole died and where the medical examiner has charge of her body is the one that has jurisdiction. [Broward County] Circuit Judge Larry Seidlin was selected by random computer order and the matter is in his court. It is possible for a person to leave written instructions while he is living, but it appears that Anna Nicole did not leave any written instructions. Florida law gives the control over the remains of the deceased to the nearest living relative over the age of 18. Anna Nicole’s [5-month-old] child, who is the sole beneficiary of Anna Nicole’s estate, has no power over the remains, nor does the child’s guardian.
The only ones with control would be either a person Anna Nicole appointed or the next of kin over 18. In absence of specific direction in the will and the absence of a surviving spouse or an adult child, you would expect that the mother would have the right to the selection of the place of burial. What [Howard K. Stern, Anna Nicole’s boyfriend and personal representative,] will seek to introduce is evidence of “contrary intent”—to do something different than what the law provides. Without some written authorization made while Anna Nicole was living, my prediction is that the court will probably rule for the mother.
Newsweek: Howard K. Stern seemed to assert in court that a commitment ceremony performed aboard a boat in the waters off the Bahamas last September could somehow be binding. Do you agree?
Muir: In the absence of a marriage license issued by some jurisdiction, a commitment ceremony at sea is good for the duration of the voyage and would not be recognized by a court. Howard K. Stern is not a spouse, notwithstanding the commitment ceremony and a trip to sea.