The day after the election this year, Americans looked in the mirror and, for the first time, saw a new vision of themselves. This new America has been said to be a reflection of — and culmination of — changes that have been taking place for decades.
Of course, the re-election of the country’s first African American president was an historic event in itself. But that was not all that the historians were cataloguing this year. President Obama is said to have won as a result of a diverse grass-roots coalition of women, minorities and young people — groups that have not historically been considered the political power structure in this country. Voters for the first time approved same-sex marriage in three states. Wisconsin elected the country’s first openly gay senator. Two states legalized the recreational use of marijuana. And record numbers of women, Asian Americans and Latinos will be serving in Congress.
As our country changes, the needs of individuals, families and workplaces change. As lawyers, we may need to think differently or be left behind. This applies particularly to estate planning attorneys, as estate planning issues pervade virtually all aspects of our personal lives.
Divorce is too pervasive to risk “joint representation.” I know I am treading on sacred ground here, but this is an issue with which many people grapple when they are in the throes of divorce, and there is no need to add “one more thing” for people to worry about at what is often one of the lowest points of their lives.
So these issues are in the purview of both the estate planning lawyer and the family lawyer. The estate planning lawyer, who should always be mindful that 50 percent of her married clients will separate during the course of her career, and the family lawyer, who should be advising her client to clear up murky estate issues that can be a problem in the divorce.
Lost in the shuffle, sometimes, are estate planning issues that can have far-reaching consequences. For example, what happens if one of the spouses dies or becomes incapacitated during the divorce? This is not only a statistical possibility; it is made more likely by the high stress level of the divorce.
Pick one party, or pass on both.
Many married couples and domestic partners structure their estate plans together in a joint representation by one estate planning attorney. Perhaps it could be argued that this could potentially make sense if the issues are “simple” — i.e., there are no children from a prior marriage, expected inheritances on either side, disabilities or, shall we say, “volatilities.”
But, let’s face it — 50 percent of marriages end in divorce. If we know there is a one-in-two chance that there could be a serious problem with the estate plan, why would we ever go down this road? Especially in the case of irrevocable instruments, which are difficult if not impossible to unravel when the parties decide to split.
Even if the only problem would be that both parties would require new lawyers once they decide to break apart, and the estate plan must be redone, why would a lawyer ever want to be in the position of not being able to assist either of her clients at a time when they both need her the most?
Add in the complications that could arise with children from prior marriages, the stress of potential custody battles, and the possibilities of new “parents” or guardians and it would seem like a recipe for disaster.
Of course, “joint representation” can be more cost-effective, since there is only one set of lawyers to pay. And you might argue that it builds trust between the parties when they sit and listen to their spouse tell them the spouse wants to leave them everything in their will.
But if something goes wrong at any point in the marriage — and this happens in most marriages, even the ones where the parties do not decide to divorce — it is likely that both parties will feel discomfort in calling this “joint” lawyer. The parties will question the confidentiality of any communication regarding changed wishes, and the lawyer will, in fact, be obligated to discuss whatever one spouse shares with them with the other spouse.
Family Lawyers Have an Obligation to Address the Estate Issues
Every divorce raises estate planning issues, so it is not acceptable for a family lawyer to overlook these issues. Let’s go one step further: failure of a family lawyer to raise these issues with her client early in the representation and follow them through to the end is likely to be considered a breach of the standard of care, i.e., malpractice.
Family lawyers should at least advise clients to
Update their estate plan;
Consider any trusts and beneficiary issues in the trusts;
Update beneficiary designations in connection with retirement assets, insurance and other property;
Update the health care proxy;
Make a referral to insurance professionals for a full review of insurance coverages;
Consider the titling of assets and ways in which that should be changed given the separation and impending divorce. This includes being careful with titling of assets when embarking on a new relationship, even if the person appears to be Prince or Princess Charming.
Another American Family: The Same-Sex Couple
Mentioning malpractice risk is often the best way to get a lawyer’s attention. So here’s another big one: if you have same-sex clients, it is critical to address with them their estate plan. And if estate planning is not your specialty, refer them to someone who knows the area, and who recognizes the complexity of addressing these needs in a country with a nationwide patchwork of inconsistency when it comes to legal recognition of the same-sex relationship.
As of November 2012, nine states legalized same-sex marriage. Some states recognize marriages performed in other jurisdictions, and in other states same-sex marriage is directly prohibited.
The issue is not always addressed by ballot initiative and then statute. In some states, court battles rage on, particularly in federal courts with respect to the Defense of Marriage Act, or DOMA.
Without making value judgments as to whether same-sex couples should be treated differently from heterosexual couples, the fact is that, in the eyes of the law of most jurisdictions, they are. In many places, the legal protections afforded married couples are not available to individuals in same-sex relationships. This can even be the case in states where gay marriage is legalized, since much of estate planning is governed by federal law, which supersedes state law in the event of a conflict.
Without a will or trust, then, assets will not automatically pass to the surviving member of an unmarried couple, regardless of the circumstances of the relationship. So if your client had a same-sex partner for 25 years who cared for your client until the day she died, property of the decedent will not pass by statute to the survivor of the relationship. We see this often when family members come into the picture and claim the home of the parties, leaving the partner to live in her car for the rest of her life.
The same goes for retirement accounts. The IRS does not recognize same-sex relationships. Therefore, same-sex couples must follow the rules for unmarried people with respect to retirement accounts such as 401(k)s and IRAs.
This Is Not Your Grandfather’s America
If there is anything that the election of 2012 taught us, it is that diversity is here and the “typical” American family of Ward and June Cleaver is all but in the past.
This not only means that election results may be affected for generations to come. But, as lawyers who deal with “families” of all kinds, we have an obligation to understand that divorce and same-sex couples are part of the fabric of our world, and our clients need help sewing the pieces of these complicated quilts together so they can safely navigate these often tumultuous waters. •