New York estate planning is a family affair–husbands, wives, children, grandchildren and others all have a stake in ensuring that planning is done properly and timely. This might lead some to wonder whether each individual with a stake in the planning needs their own lawyer. In particular, in blended families (involving subsequent marriages), does each individual spouse have adverse interests such that a single lawyer cannot represent them both in their planning?
That was a question discussed in a Forbes story this week.
Of course, in certain family situations it is usually vital that couples have separate counsel. For example, while certain types of uncontested divorces exist, in most cases couples going through a separation must have their own legal advocate, because the entire process is contentious.
Do some of the same issues apply when it comes to elder law estate planning? Not usually.
While divorce involves a “tug-of-war” over property splitting and other issues, estate planning is a collaborative process where families talk together with the counsel of experienced legal professionals to discuss their long-term financial wishes and potential care needs. There is much less inherent conflict. This does not necessarily mean that that husbands and wives will automatically agree on ever single detail of a plan, but the resolution of those disagreements are generally not so contentious that they necessitate each party have their own individual legal counsel.
The article mentions an added benefit of going through the New York estate planning process together, noting that “it builds greater trust and more open communication between the two of you, and possibly with all of the children in your lives.”
All of this does not necessarily mean that there are no situations where separate representation may have benefits. But that situation is much more an exception than a rule. Certain situations are more likely to result in strong disagreement between spouses which might necessitate separate attorneys for each partner. It is usually a combination of those factors which might result in significant dispute. Those situations include: where only one spouse has a child, where one spouse is much wealthier than the other, if the relationship is still very new, if there is a prenuptial agreement, if there is a large age difference between spouses, or if one spouse has certain privacy issues that they might not want exposed during the process.
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