Should Spouses Use Separate Attorneys?

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Spouses may benefit from different estate planning attorneys.

Married couples tend to share a lot of things.

They often share a home, responsibilities, and finances.

However, there may be some things partners may choose to keep separate.

These can include inheritances for children from previous marriages and personal debts brought into the marriage.

According to a recent The Street article titled “Should My Spouse and I Hire the Same Estate Lawyer?,” some couples may also benefit from having separate estate planning attorneys.

Spouses may require different attorneys.
Sometimes spouses have a lot of love for each other but different estate planning goals.

What considerations need to go into this estate planning attorney decision?

The couple should consider their goals and their assets.

If the couple has fairly straightforward property ownership and the same interests, having the same estate planning attorney is often sufficient, let alone more efficient.

The simplest estate planning is often for couples in their first marriages, with a single home, and no children.

When working with the same estate planning attorney, couples must agree to have the same attorney represent both of their interests.

In addition, couples must agree that their mutual attorney cannot keep the confidences and secrets of one spouse from the other.

Often these clarifications are outline in an engagement letter the couple will sign when entering into a working relationship with the attorney.

Although it would be nice if everyone had simple situations, this is not a reality.

Oftentimes spouses have accumulated or inherited property separate from the other spouse prior to marriage.

Other times, one spouse has a shared stake in a vacation home or family business.

When property is owned jointly with siblings or parents, it can be wise to maintain a “separate estate” and engage a separate estate planning attorney to keep these assets in the family.

Other complications involve where assets are owned.

If one person owns property in multiple states, it may be necessary to work with attorneys in each of the represented states.

These attorneys will be able to address concerns with family partnerships or limited liability corporations unique to applicable state law.

Attorneys from different states who are working for the same client should be willing and able to work together on estate planning goals and create the appropriate legal instruments.

Another reason spouses may benefit from two attorneys is personality fit.

Some spouses may prefer to understand every minute detail of the plans they create with an attorney.

The other spouse may choose to simply have an attorney understand their wishes and create the plan for signature.

Using attorneys with differing personalities and approaches to estate planning can help each spouse feel more comfortable.

With divorce being fairly common in the United States, planning around this possibility can stir up a lot of negative emotions and trigger conflict.

By using two separate attorneys, it may be possible for each spouse to protect their respective interests, the interests of their spouse, and the interests of their children come what may.

One common estate planning strategy for divorce is the “floating spouse” provision.

This essentially defines the spousal beneficiary as the “current spouse” rather than using a name.

The provision can be especially beneficial when an irrevocable trust is used.

The irrevocable trust is commonly used for tax purposes to remove assets from a taxable estate.

By nature and design, these trusts are challenging to change.

Using a “floating spouse” provision can save time and money in trying to replace a previous spousal beneficiary.

Nevertheless, this approach must be carefully considered as it is not a simple as it sounds at first blush.

As spouses consider their estate planning goals, they should also discuss the benefits and risks of using the same or separate attorneys.

ReferenceThe Street (Nov. 30, 2022) “Should My Spouse and I Hire the Same Estate Lawyer?”

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