When couples start talking about estate planning, it is an important moment. Beginning to speak about each other's wishes and goals for estate planning is the first step toward leaving an ordered financial situation at one's death. It can mean other things as well, such as passing on a legacy, leaving money to important charities, and passing on not only one's wealth but also one's wisdom to the next generation.
Regardless of what couple's decide their goals are in estate planning, it is important that the process gets started. After beginning to discuss estate planning matters, though, some couples find that they have differences in their goals. Others couples don't realize they have different goals until meeting with their attorney. Whatever the case may be, it sometimes becomes clear that couples need to retain different attorneys to represent them in the estate planning process.
To be clear, not every couple will need to have separate attorneys in estate planning. In fact, many couples never consider the issue until their attorney brings it up, having discovered a potential conflict of interest. Couples who choose to retain the same attorney typically sign an waiver saying that the attorney will not be able to keep information shared privately by one spouse from the other when that information has an impact on the other spouse's interests. For many couples, this works perfectly well.
How can couples tell whether they will need separate attorneys? One way to know is whether you both feel comfortable speaking about all of your concerns with one another. If there are certain questions or situations one spouse doesn't feel comfortable speaking about in front of the other, it is a good sign they should retain their own attorney.
Source: Forbes, "Ethics in Estate Planning for a Married Couple," Stephen J. Dunn, April 26, 2013.