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Judge refuses to order DNA test on Smith

A judge on Friday refused to order an emergency DNA test on the body of Anna Nicole Smith as part of a paternity suit involving her infant daughter, but he ordered that the body be preserved until a hearing in 10 days, attorneys said.
/ Source: The Associated Press

A judge on Friday refused to order an emergency DNA test on the body of Anna Nicole Smith as part of a paternity suit involving her infant daughter, but he ordered that the body be preserved until a hearing in 10 days, attorneys said.

Two men are contesting the paternity of 5-month-old Dannielynn, and experts say the custody decision could determine the child’s inheritance.

With major legal issues undecided, Smith’s legacy could take years to untangle and could leave the baby girl with millions of dollars or nothing at all.

Larry Birkhead, a former boyfriend of Smith, claims he is the father, though another man is listed on the birth certificate. His attorney Debra Opri requested Friday’s hearing to ask the judge to order that DNA be immediately collected from the Smith, who died Thursday in Florida.

“Nothing was granted. Nothing was denied,” Opri said after the hearing. She said another hearing had been set for Feb. 20 and the judge had ordered Smith’s body preserved until a decision was made.

The DNA is needed to connect Smith with Dannielynn “so that no one can switch the babies,” Opri said.

She also asked the judge to take jurisdiction over the child — reported to be in the Bahamas with friends of Smith — until her paternity is established. The judge did not rule on that request.

Attorney Howard K. Stern, Smith’s most recent companion, is listed on Dannielynn’s birth certificate as her father. If it is determined he is the biological father and if he was legally married to Smith — which has yet to be established — Stern, not Dannielynn, would likely inherit Smith’s estate, experts say.

Urgency for testing 'despicable'
Ron Rale, an attorney for Anna Nicole Smith, decried the push for the test so soon after her death. He said there was no urgency because his client’s DNA would be irrelevant in determining who fathered the child.

“It is despicable that we would have an emergency notice and appear right now,” Rale outside court.

If Smith left no will, and if she and Stern weren’t married, then the baby’s father and child likely would split her assets, according to Christopher Cline, an estate planning lawyer with the firm of Holland and Knight.

“It’s a really large legal quagmire,” said Cline, who enumerated some of the many questions hanging in the balance.

“I’ve never seen a case with more moving parts,” he said, comparing the legal morass in its complexity with unraveling the estate of billionaire Howard Hughes — albeit with less money involved.

Cline outlined a series of crucial questions that range from the paternity of the child to Smith’s country of residency and, most importantly, whether she had a will. If there was a will, Cline said, questions would arise about where it was drafted and signed. If she did not have a will, the laws of her country of residence would apply.

She had been living in the Bahamas recently and gave birth to her daughter there in September.

Years of legal battles ahead
It also wasn’t clear how her death affects the lawsuit still pending against her late husband’s estate. Experts in Texas, where Smith fought for millions of dollars in inheritance, said the court battles will go on.

“The claims will survive to her estate,” said Charles W. “Rocky” Rhodes, a South Texas College of Law professor who has followed the complicated series of lawsuits involving Smith and the family of her dead husband.

“In criminal cases like we had with Ken Lay, where the defendant died, it was over,” he said. “But in civil cases where the claim is for money, your estate and the heirs you have from the estate are able to continue the litigation in the name of the representatives of the estate.”

E. Pierce Marshall, her late husband’s son who had been fighting her over his father’s estate, died in June. But the Marshall family vowed to continue the fight.

Family lawyer Mark Vincent Kaplan of Los Angeles, who has handled many celebrity paternity cases, said he believes Stern initially will receive custody of the child because he is listed on the birth certificate.

“The paternity test should be expedited,” he said, “because if he is not the bio dad he has no rights to custody. But I predict there will be a will saying that Howard K. Stern is the father.”

He added that another complication could arise if Stern was the lawyer who drew up the will and may be listed as the executor.

“By law, he can’t be both the executor and the beneficiary,” Kaplan said.

The Smith saga has been filled with so many deaths, Kaplan said, that lawyers are beginning to talk about a curse on the litigation. Just five months ago, Smith’s 20-year-old son Daniel died suddenly in the Bahamas in what was believed to be a drug-related death.