In my last blog post, I described the options available to a spouse when their “better half” refuses to participate in the estate planning process. This post describes another less-than-ideal situation between spouses – the family feud.
The fictitious married couple of Max and Maxine Smith retained Acme Law Firm to complete their estate planning. When the Smiths signed a legal services agreement with Acme, the law firm included what is referred to as a “conflicts waiver provision” in the agreement stating it would be representing both clients jointly. This provision indicated that information must be freely shared between the couple and the law firm. One spouse could not tell the law firm something with the expectation that it would be kept private from the other spouse. Additionally, the provision stated that Acme could only represent Max and Maxine jointly in completing their estate planning so long as their goals are substantially aligned.
Lucy, an attorney with Acme, started her work by scheduling a joint call with Max and Maxine to discuss their estate planning goals. During the call, Max and Maxine began quarreling over who should serve as the guardian for their minor children. In addition, Max suggested that if both spouses were to die, all the couple’s assets should be distributed to their children. Maxine disagreed, “Seriously Max?! My parents paid for your MBA. You are seriously so cheap that you can’t even give them some sort of estate distribution to pay them back? That’s completely unacceptable!” After the call, Max sent Lucy an email. He did not include Maxine as a recipient. In the email, Max explained why his choice of who would serve as guardian was superior to Maxine’s choice. He also stated that he remodeled Maxine’s parents’ home for free to pay them back for his MBA, and Maxine was “delusional” to think that more was required.
Frustrated with the acrimony exhibited between Max and Maxine, Lucy decided to review Washington Rule of Professional Conduct (RPC) 1.7 governing conflicts of interest. Lucy noted that RPC 1.7(a) prevented her from representing Max and Maxine jointly in their estate planning if “the representation of one client will be directly adverse to another client.” Since Max and Maxine disagreed about many aspects of their estate planning, Lucy decided to withdraw from joint representation. She recommended that Max and Maxine obtain separate attorneys to prepare their estate planning documents.
Ideally, as stated in my prior blog post, married couples can jointly enter into the estate planning process with one attorney. But, if disagreements exist, such as occurred with Max and Maxine, separate counsel will be needed. In addition, the possibility exists that the couple could potentially engage a mediator to work through their differences, so their estate planning documents would be as closely aligned as possible.
Although the estate planning process can be problematic when spouses disagree, it is still preferable for the spouses to work through the challenging issues and have some estate planning in place instead of dying intestate.
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