Married couples most often prefer to set up a “joint” estate plan. Even if they are represented jointly, each will still have his/her own will and other documents.
It is perhaps a misconception that spouses’ estate plans should mirror each other. They absolutely don’t have to, and in many cases should not. Even in the case of a married couple, each spouse has to decide independently what to do with his or her own assets. The only exception where it is advisable that they check with each other is if they have minor children together.
The clients whom I represent jointly and draw up their estate plans are always in absolute harmony both as a married couple and in their conviction as to how to divide their assets. That is the only situation in which I can represent two spouses together.
Joint representation is not advisable when there is a conflict of interest between the spouses. Examples are the following:
- One spouse has significantly more assets than the other;
- One spouse has children from prior relationships;
- The spouses are not in agreement regarding the distribution of their assets. (The topic of estate planning has been a topic of discussions for a long time)
In many of these cases attorneys are ethically prohibited from representing both spouses. Each spouse will need to seek separate legal counsel.
Attorneys owe a duty of loyalty to each and every client. This means that we have to “zealously advocate” each client’s interest to the maximum possible extent. Let’s say that one of the spouses (Spouse A) has few assets and children from a prior relationship. That spouse being equally my client, too, I would have to argue for provisions that guarantee maximum payouts from to him and his family members. This would go against the interests of Spouse B, who might wish to leaver her own separate assets (not the jointly titled ones) to her relatives. Thus I would fail my duty of loyalty to spouse B, since I cannot “zealously advocate” her interests at the same time.
In many European countries, spouses may set up joint wills or testamentary contracts. In the United States, neither joint wills nor testamentary contracts are valid. Each spouse may dispose of his/her sole assets in an unrestricted way, subject only to the statutory minimum share of the surviving spouse.
Your estate plan is not supposed to be subject to negotiation between you and your spouse. You as an individual may set up provisions about your sole assets as you please without having to first check with third parties. Your spouse has a statutory claim to a share of your assets, should he survive you. You might also have joint assets with titled with right of survivorship. Beyond that it is your decision alone to whom you leave your estate. You don’t need to discuss it with anyone.
Some people are concerned that their relationship with their spouse will deteriorate if they seek separate legal advice. That alone should make them realize that they have a conflict of interest.
As an attorney it is my obligation to make sure that my client is free of undue influence. I cannot be there during clients’ discussions at home with their spouses, but the very least I have to do is to make sure that they come alone to the appointments so that you can talk freely about their wishes, ideas and concerns.