Douglas A. Turner, P.C.

View a complete copy of Anna Nicole Smith’s will here.

(Originally published in print - March 2007)

For those of you who have been on a desert island for the last few weeks, the lovely Anna Nicole Smith has passed before her time in a Florida hotel room, as a resident of the Bahamas with a will drafted in California and a lawyer as her boyfriend and confidant.

An Overview of Anna Nicole Smith’s Will

The will executed in 2001 specifically provides for her son who committed suicide. The will makes no mention of her daughter who was born after the will was executed. The multimillion-dollar question is whether Anna Nicole Smith intentionally did not provide for that daughter. No law school professor could have conjured up a better essay question for a final exam in estate planning 101.

Under the laws of most states, it is assumed that Anna Nicole Smith would have provided for that daughter unless she specifically states otherwise in her will. The legal lingo for this is a pretermitted child. The law assumes the omission of a child born after the will was executed is an oversight and automatically includes the child in the gift to other children. However, Anna Nicole Smith’s will contains the following clause:

“Except as otherwise provided in this Will, I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children.” (Emphasis added)

Perhaps I could make an argument that this language does not exclude future children. I cannot say what this means under California law. Nor can I pass judgment on the drafter because there is much more to any estate plan than what we see in the final, executed will. What I can say is that standard or boilerplate clauses excluding individuals from a potential inheritance should always be reviewed with an eye toward whether that clause applies to that particular individual.

The Standard Clause and Boilerplate Clauses

I suspect that this clause is a standard clause used in many California wills. Many practitioners, myself included, have standard clauses that they include in almost every will. In the case of the clause excluding future spouses and children, lawyer and client should discuss the benefits and risks of including such a clause. The benefit is the exclusion of individuals who may wrongly claim entitlement to the assets of the deceased. The risk is the complete exclusion of a deserving child or a spouse simply because updating the will was overlooked. As a general rule, our office tends to allow for later born children because people routinely overlook updating their estate plan.

For us boys, we may not know that we have children. However, for the ladies, well, they typically remember the moment with painful clarity. With that in mind, I must ask the question. Did Anna Nicole Smith really mean to exclude future children? Or is this a standard clause that was passed over without a thought? Or, are future children the only possible exception to this broad exclusion?

Periodically Review Standard Clauses

The lesson I have learned from this terrible tragedy is how something I may include in a will as a “standard” clause can have profound consequences years in the future. Any clause in a will that limits a potential heir’s rights should be discussed with the client laying out the benefits and the risks the clause. Anytime a restriction is placed in a will, perhaps both the lawyer and the client should calendar a periodic review to re-visit the issue. Ultimately, the responsibility lies with the client to update an estate plan as their financial and personal situation changes.

Next: The Will of Anna Nicole Smith - Part 2

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