Representing Couples in Preparing Estate Plans

We often find ourselves representing couples in development of a comprehensive estate plan. Do both spouses/partners need separate counsel? Not usually, but everyone has to appreciate that there are challenges.

As we discuss in this podcast episode, there are both ethical and practical issues inherent in representing couples. We owe a duty of confidentiality to each partner — but we also owe a duty of disclosure of any information that might affect either spouse’s planning. Confidences from one spouse are rare — but not unheard of. Everyone needs to understand what might happen if an actual conflict does arise in our representation.

There are also practical considerations in representing couples. Will every communication go to both partner’s email and physical mail addresses? Will we accept editing and suggested changes from one partner, or require both to communicate? Can we have a follow-up meeting with only one spouse — and if so, do we need to affirmatively tell the other spouse about the meeting?

And what happens if — perhaps years after the estate planning is completed — a married couple divorces. Can we continue representing both halves of the couple, or either? What duty might we have to notify one former partner about the other former partner’s appointments and actions?