By Allison L. Lee
You and your spouse may visit the same primary doctor, financial advisor, and tax preparer. But what about preparing your wills? The short answer is: it depends!
Working with the same attorney as your spouse can offer several benefits, but there are also dividends to going your own way. Consider the following common situations when deciding whether or not you and your spouse should hire the same estate lawyer:
Your estates are relatively simple and interests aligned.
Trusts and estates experts agree that an attorney can be effectively engaged to represent a couple in planning their estates — especially when the estates are relatively simple (think: no sophisticated tax planning, a first marriage with or without children, and property located in one area). This joint representation can be a time and money saver since there’s no need to retain two separate lawyers and trek to two separate law offices.
Of course, it’s important to understand the considerations of a joint representation, including that there are no secrets. This means that you, your spouse, and the lawyer are able to agree that the lawyer will share any information learned from one spouse with the other spouse. These terms should be clearly outlined in the engagement letter that you and your spouse sign when you retain the lawyer.
One spouse has property in another state
Let’s say you own property in another state that is not co-owned with your spouse. This commonly happens when there’s an out-of-state property that’s part of one spouse’s immediate family, like business property or real estate that they co-own with a parent or sibling. This can also include property that one spouse is likely to inherit with the intention and expectation that it stays in the ancestral line.
You’ll also likely want to engage an attorney in the other state to make sure that any important local law considerations are addressed — even if you and your spouse decide to engage the same primary attorney for the joint estate planning representation. An out-of-state attorney can help advise if there are any special planning considerations that you might want to make, such as placing property into a family-controlled entity like a limited liability company.
Coordinating a call between your out-of-state attorney and your primary in-state attorney could be in the cards since there can be interrelated planning considerations that will need to be addressed in your will or trust.
You and your spouse have different communication styles.
Let’s say you prefer to work with a professional who is more talkative and wants to really get at the heart of your planning goals. Your ideal advisor is always challenging you to better describe the lasting legacy you want to leave. Your spouse, on the other hand, wants to keep the talking short and sweet. In such a case, you might each find it helpful to seek independent counsel to make the estate planning process most productive and comfortable for you.
Depending on the size and capacity of the law firm, it may also be possible for you and your spouse to work with different attorneys at the same firm. This allows you each to work with an attorney that matches your communication style when handling your planning matters. Because at the end of the day, seeing a professional whose style doesn’t align with your preferences will make it less likely to come out of the process feeling satisfied and willing to re-engage when your planning needs require an update.
One or both of you want to use a “floating spouse” provision.
In certain circumstances, trusts and estates attorneys generally agree that you and your spouse will want independent counsel. One such case is when a spouse wants to incorporate a “floating spouse” provision into their documents. Generally speaking, a floating spouse provision defines a “spouse” as the person you’re married to from time to time. This becomes relevant if there’s a divorce and the former spouse would have otherwise had a vested beneficial interest in a trust.
Here’s a practical example: Let’s say you create and fund an irrevocable trust and intend to name your spouse as a beneficiary. Because the trust is irrevocable, your ability to make any future changes is greatly limited. You may ask yourself, “but what happens if we get a divorce?”
By incorporating a floating spouse provision, you could protect your interests by having your current spouse removed as a beneficiary and substituting in their place a new spouse. Not all individuals prefer this, but if you and your spouse express an interest in this type of arrangement, you should consult independent counsel since your interests are considered legally adverse.
There’s no one-size-fits-all solution when it comes to planning the estates of a married couple. In certain cases, including if any part of the plan creates adverse interests, a joint representation may be difficult or even impossible. However, if you and your spouse have relatively simple estates, aligned interests, and similar communication styles, signing on to a joint representation with one estate attorney may be a great choice for planning your estate — and having your spouse by your side could give each of you that extra push to take care of this essential life task.
About the author: Allison L. Lee
Allison L. Lee is the attorney-at-law and director of trusts & estate content for FreeWill, a mission-based public benefit corporation that partners with nonprofits to provide a simple, intuitive and efficient platform to create wills and other estate planning documents free of cost. Through its work democratizing access to these tools, FreeWill has helped raise more than $4 billion for charity.