If
a conflict of interest arises in fact between the spouses, their estate
planning attorney should withdraw and advise the spouses to retain separate
counsel. Having represented both of the
spouses, the attorney may not thereafter represent one of them against the
other, even if they consent.
According to the U.S. Census
Bureau, the divorce rate of first marriages is around 50 percent; second
marriages are at 60 to 67 percent and third marriages are at 73 to 74 percent.
The fact is married couples frequently disagree … even when it comes to 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. #estateplanning #attorney #torrance #probate
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Reference: Forbes (April
26, 2013) “Ethics in Estate Planning for a Married
Couple”