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Toobin: Smith leaves behind thorny legal questions

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(CNN) -- Reality show star and former Playboy playmate and stripper Anna Nicole Smith's death leaves complicated legal questions unanswered.

Who will get paternity of the 39-year-old's infant girl and who will possibly get millions of dollars from Smith's legal battle over her late tycoon husband's estate? CNN's Soledad O'Brien spoke with legal analyst Jeffrey Toobin about those questions Smith left behind.

O'BRIEN: So there are lots of questions this morning, about just how Anna Nicole Smith died, and of course, even more legal questions.

Smith was still fighting for a share of her late husband's fortune. Plus, there's that paternity fight over the 5-month-old daughter. Plus, you have the will, was there one or wasn't there one?

All of that brings us right to CNN's senior legal analyst Jeff Toobin. Wow, an already complicated case, gets even more complicated.

TOOBIN: Stunningly complicated. Let's just think about three questions for starters.

O'BRIEN: I have about 10, what, we can only do three?

TOOBIN: Was there a will? Because if there's a will, that's going to be the starting point for all issues about custody and the finances.

O'BRIEN: But she's only 39 years old, so let's say there's not a will.

TOOBIN: Unlikely there's a will, yes.

O'BRIEN: Because that's quite young to be drawing up your own will.

TOOBIN: Absolutely.

O'BRIEN: So would it have to go into probate?

TOOBIN: It would be determined by whatever state she happened to be a resident of, but that's not clear where she lived. So that's another issue.

Also, was she married at all? I mean, she and Howard K. Stern, not the radio broadcaster, described themselves as husband and wife, but apparently the ceremony they had in the Bahamas may not be an actual marriage. If you're married, your assets go one way. If you're not, they go another.

And then, of course, there's the question of who's the father of the little girl because she, presumably, will inherit the vast majority of her fortune.

O'BRIEN: Even if there is no will and it goes into probate in any state, doesn't the baby, eventually -- I mean it may be a long time before it's all clear, but doesn't the baby eventually inherit her mother's estate?

TOOBIN: Not necessarily the entire estate. If you're married, a spouse has a legal claim even if you have no will. So that is a big factor either way.

O'BRIEN: She was trying to get her share of her husband's vast [fortune] -- her former husband who died, the 89-year-old tycoon, Howard Marshall.

TOOBIN: Right.

O'BRIEN: The judge ruled that she can have $474 million, that was eventually, after challenges, cut back to $88 million, and it's still being challenged. Where does that stand?

TOOBIN: Well, see, again, that's where the will becomes important. Because if you're a party to a lawsuit and you die, your estate inherits your interest in your lawsuit.

The question is who controls her estate? Because that lawsuit is worth a tremendous amount of money. As you point out, at the moment it's worth $88 million. It actually could be worth considerably more than $88 million.

She won her famous case in the Supreme Court earlier this year, but that didn't resolve the whole thing. That only decided which court controls the outcome, but --

O'BRIEN: Can we talk for a moment about another issue, which is the contested paternity.

Larry Birkhead says, no, no, no, I'm the father of this baby, but he says I'm devastated -- his lawyer said he is devastated he lost the mother of his child and the woman that he loved. You're always in trouble when it's your lawyer who's releasing statements like this.

TOOBIN: Especially that, who you love.

O'BRIEN: Exactly, this is really legal positioning because this baby is sitting on a pile of cash, potentially.

TOOBIN: Potentially. Well, one of the many peculiarities about Anna Nicole Smith's life was that in the months since her baby has been born -- she's only 4 months old.

O'BRIEN: Five months old.

TOOBIN: Yeah. She has refused to take a DNA test. Her husband, Howard K. Stern, has refused to take a DNA test, but Larry Birkhead, the boyfriend, has been asking for the DNA test, so he apparently is pretty confident that he is the father of this baby.

That's what the hearing in court today ... is about, starting to establish paternity. Unlike everything else, this is something that will probably be resolved with pretty clear certainty in the immediate future because there's going to have to be a DNA test.

O'BRIEN: One would think. All right Jeff Toobin for, I think, you kind of cleared it up for us a little bit on the legal front.

TOOBIN: At least defining some of the questions.


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CNN legal analyst Jeffrey Toobin

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