n 1990, in Lawrence Brody’s estate planning seminar in the LL.M. program at Washington University in St. Louis School of Law, Professor Brody mentioned a husband and wife retaining separate estate planning counsel. At the time separate estate planning counsel for spouses struck me as a bit much. I have since come to realize that separate estate planning counsel can indeed be advisable for spouses.
Marriage is a partnership. Any partnership requires working together and, perhaps, compromise. But what if there is disagreement, especially when it comes to your estate planning?
Marriage counselors stay in business because of marital disharmony. Commonly, they represent both spouses and seek to find common ground in a team approach. When it comes to estate planning, however, attorneys face a potential ethical dilemma. For example, estate planning attorneys cannot favor one spouse over the other, nor can they keep the secrets of one spouse from the other spouse in the course of “dual representation.”
While there’s no sense starting trouble where there is none, nor in approaching anything in an overly legal or litigious way, sometimes spouses really do have different estate planning interests. It’s an ethical problem for the spouses and their estate planning attorney alike, as pointed out in a recent Forbes article titled “Ethics in Estate Planning for a Married Couple.” This certainly is an issue for attorneys (and their malpractice carriers) to fret about, but also for their clients to understand and appreciate.
Indeed, at certain junctures it might be necessary for spouses to even engage separate counsel to wrangle their way through an estate planning impasse. This happens many times with prenuptial and postnuptial agreements, but in other instances as well.
Do you not need separate counsel? Great! Still, take a moment to read the Forbes article about potential hazards. Above all, if you choose “dual representation,” make sure you both truly are represented – and included in all attorney-client communications.