Anna Nicole Smith Left Tangled Legal Web

ByABC News
February 10, 2007, 2:32 PM

Feb. 10, 2007 — -- ABC News' Law and Justice Unit asked prominent family law professor Jeff Atkinson at DePaul University College of Law for a quick overview of the web of legal issues that follow Anna Nicole Smith's death.

Atkinson, who also works with the American Bar Association and the National Conference of Commissioners Uniform States Law, offered his thoughts on how the courts now will handle the legal battles over the fortune of Smith's deceased husband, J. Howard Marshall, and the custody of Smith's infant daughter, Dannielynn. Multiple people claim they fathered Dannielynn, including Smith's former boyfriend, Larry Birkhead, and her companion, Howard K. Stern.

Would a will signed by Anna Nicole decide custody of Dannielynn?

Jeff Atkinson: If Anna Nicole executed [signed] a will naming a person as the custodian of Dannielynn in the event of her death, the question may arise of whether that will determine custody. The answer -- at least in most states -- is "No." A court will consider the wishes of a deceased parent, but the court is the ultimate arbiter of what is best for the child, and the court also is obliged to consider the rights to custody of the surviving biological parent (or a person who has been acting as parent).

Was Anna Nicole married at the time of her death?

Atkinson: News reports state that Anna Nicole and Howard K. Stern had a "commitment ceremony" on Sept. 28 in the Bahamas. Generally, the law of the place where a ceremony takes place, or the law of the place where a couple lives, determines if a ceremony is a marriage. I do not know, in detail, what this "commitment ceremony" was, but it does not sound like a marriage. In the United States, states generally require that a valid marriage include issuance of a marriage license by the state and a ceremony at which the parties agree to be married (not just "committed"). Approximately 10 states recognize common law marriages -- by which a couple can be considered to be married without a marriage license or formal ceremony, if the woman and man live together and hold themselves out as a married couple (California and Florida do not recognize common law marriages). It is unlikely that Howard K. Stern and Anna Nicole would be considered to be married -- but I do not know the law of the Bahamas on the issue. The law of the Bahamas is based on English common law.