Anna Nicole's kid and the unborn heirs problem

Drudgereport linked an article yesterday that the late Anna Nicole Smith's child may be the child of her late-billionaire husband. Setting aside the will contest between Anna Nicole and that family for the purposes of this entry, Drudge's nugget creates a different facet to the inheritance problem that I discussed yesterday.

Generally, there is a presumption that a child is yours if it's born roughly nine months after you die. Modern medicine, of course, allows children to be born beyond this time period. The problem that has been created by this technology and beginning to be addressed through the court system is how long do the inheritance rights of this particular child run, since normally one's assets are divided evenly among children if there is no will and no living spouse. California has one casebook case about this (Hecht v. Superior Court, 1993) and Massachusetts recently weighed in on a similar issue (Woodward v. Commissioner of Social Security, 2002). (and yes, I know these aren't bluebooked properly).

In the end, as the Woodward case points out, it's all about money. Social security, insurance claims, etc. all may be brought by the living parent or her estate on behalf of the child, but at what point can you really say enough time has passed? The legislature could make a distinct cut off, but then are you faced with the problem of forcing children to be conceived? On the other hand, a cut off point could make it much easier for the parent making this choice to realize the economic and familial consequences. Either way, the inheritance rights of these children, if any, becomes a very fact intensive issue. Particularly, the court must resolve whether the dead parent actually wanted the child and further, how the dead parent planned to address the problem of the decreased share owed to his or her other living children. As you can imagine, this can be just as messy as, if not messier than, a will contest.

If Anna Nicole's child is the child of her deceased husband, this obviously keeps the half billion dollars away from any of the other half a dozen or so men who are coming out of the woodwork to argue that the child was theirs (which leads one to wonder where these men were while Anna Nicole was living, but that's beside the point and irrelevant for these purposes). Whether this child now has a claim on the inheritance (in addition to Anna Nicole's estate and the other children) becomes yet another question to be determined by the courts, and probably a much more difficult one to resolve in the child's favor. Although the Daily News reporters argue that the child can receive up to half of the $1.6 billion estate, that is a misleading and conclusory statement for the above mentioned reasons. Given the acrimony between the parties, it is unlikely she would receive any of that money, and even if she did, it would not be anytime soon. To reiterate my point from yesterday, all of this could have been resolved through a will, even the case of frozen eggs/sperm, because the will could be drafted to account for such a contingency. Oh well.

Tags: anna nicole smith, will