Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, November 25, 2008

The Marshall decision analyzed

Smith2Robert P. Dougherty III recently authored an article entitled Marshall v. Marshall: Playmates, Prenupts, and the Probate Exception, 61 Ark. L. Rev. 329 (2008).

Here is an excerpt from the Introduction:

On May 1, 2006, the United States Supreme Court handed down Marshall v. Marshall, a case that has received much publicity due to the celebrity parties involved. Petitioner Vickie Lynn Marshall (“Vickie”), also known as Anna Nicole Smith, was the surviving widow of oil tycoon J. Howard Marshall II (“J. Howard”). J. Howard met Vickie in October 1991, and the two married on June 27, 1994 after a courtship of more than two years. J. Howard passed away August 4, 1995, just over a year after they were married. The ensuing litigation over J. Howard's vast estate has resulted in the Supreme Court handing down a decision that may have a great impact on federal jurisdiction in the future.

This note will analyze the Marshall decision in its entirety. First, this note will discuss the facts of the case and how this case ended up before the United States Supreme Court. Next, it will explore the history and origin of the probate exception. This note will then break down and analyze the reasoning of the Supreme Court in deciding that the probate exception did not apply in the case at hand. Next, it will explore Arkansas and Eighth Circuit cases where the probate exception was at issue and analyze them under the Marshall holding. Finally, this note will attempt to instruct practitioners on how they can either avoid or invoke the probate exception based on the reasoning of the Marshall decision and other cases.


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Without reading the entire article, it's hard to know how the author comes down on the subject. However, I think it would be entirely irresponsible to instruct lawyers or future lawyers on the methods of Vickie's attorneys as they are completely unscrupulous. Forum shopping is not a legal strategy that should be taught in law schools, or anywhere else. Especially when it's used as a tool to override the explicit wishes of a decedent (whose will clearly articulated his desires).
I sincerely hope that this is not the course that the author follows.

Posted by: MJP | Dec 23, 2008 6:06:04 AM

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