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 marriage 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.
Reference: Forbes (April 26, 2013) “Ethics in Estate Planning for a Married Couple”
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