Estate Planning - Do We Each Need Our Own Attorney?

Q:  What happens if my husband and I can’t agree on what we want in our Will or Trust? Do we need to have separate lawyers prepare our estate planning documents?

A:  Maybe. When couples choose to do estate planning with one attorney, complications can arise when the couple disagrees with how their estate plan should be drafted. If the disagreements are minor and the couple is otherwise amicable, you can have the same attorney work on a mutually agreeable resolution and draft all your estate planning documents. However, if the differences of opinion remain substantial and/or the couple has an adversarial relationship, it may be prudent for each individual to seek independent legal counsel. This will ensure that both husband and wife have received fair, unbiased advice and their estate planning reflects their individual wishes. Please be aware, though, that spouses have certain property rights that can only be waived if they have a prenuptial agreement or consent to one another’s planning.

Here are just a few of the common points of contention between couples we have encountered over the years:

1. One spouse wants to leave a substantially larger (or smaller) inheritance to one or more of their children than does the other spouse. This is often common when a child is involved in a business venture with the parents and the other children are not.
2. One spouse doesn’t want the surviving spouse to have control over their assets in the event of a remarriage.
3. The spouses disagree on who would be the best conservators/guardians for their minor children.
4. One spouse has “family property” he/she inherited from his/her family and wants said property to remain in their bloodline rather than go to their surviving spouse.
5. A difference of opinion on how to treat “his, her and our” children is very common in secondary marriages.
6. Adult children from a first marriage often want their parent to severely limit any inheritance to a stepparent.
7. If a child has an addiction, is financially irresponsible, or has a troubled marriage/relationship, spouses are often at odds about what, if anything, the child should receive by way of inheritance.

​Please remember, for every problem, there exists a solution. Your willingness to compromise on non-essential items and to have an open mind are essential to a successful plan. Additionally, the experience and expertise your estate planning attorney brings to the table also is a key element. If you have questions, about any estate planning matter in Kansas, contact Davis & McCann, P.A., Dodge City, Kansas at 620-225-1674. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate, 1031 Exchanges, and related matters.

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