03/04/2014 04:45 EST | Updated 05/04/2014 05:59 EDT

Estate Planning: Advice for Those in Second Marriages

In our most recent blog entry, we discussed the issue of second (or later) marriages from the perspective of clients who are seeking assistance in formulating an estate plan. We now move on to consider this issue from the perspective of lawyers who may be called upon by such individuals to draft wills and provide advice with respect to other aspects of estate planning.

It is usually a client's primary estate planning goal to support a surviving spouse. However, objectives beyond this basic starting point are often different between spouses who have children from a previous relationship. Some couples might agree to leave equal bequests to the family of each spouse or gifts of equal value to each child.

An estate planning solicitor can assist clients in a second marriage to manage post-death distributions to a surviving spouse and children from an earlier marriage. Spousal trusts are generally thought to be a preferable option to mutual wills in preventing the children of one party to a second marriage from being disinherited. Mutual wills, being those in which the spouses have entered into a formal agreement not to revoke, can unnecessarily restrict testamentary freedom and result in disputes with respect to mutual wills that have, despite their purpose, been revoked by a surviving spouse. A spousal trust, however, can have the effect of allowing a surviving spouse to benefit from assets during his or her lifetime, before being passed on to ultimate beneficiaries.

Drafting solicitors should be careful when being retained jointly by two spouses, especially when one or both spouses have former families that they intend to recognize within the estate plan. Many lawyers are willing to have spouses sign a joint retainer for legal services, regardless of their family histories. Some drafting solicitors, however, refuse to act for both spouses when these spouses are in a second relationship. It may be preferable to recommend that one spouse obtains independent legal advice to ensure that the interests of neither spouse are compromised through their joint representation by a single solicitor.

Avoiding taking on a potential conflict appears to be the safer option. Where both spouses have previous families, there may be individuals whom they are obliged, either legally or morally, to support both during life and beyond death. The previous families of clients may have expectations with respect to the clients' estates. When this is the case, it is important that drafting solicitors are aware and develop an estate plan that recognizes all of a client's obligations. It is preferable to avoid a conflict from the outset. However, where a conflict exists, it may be recognized and managed by an experienced drafting solicitor.

In smaller communities, there may not always be the luxury of lawyers available to represent each spouse with respect to an estate plan. Further, even where the availability of drafting solicitors is not limited, retaining separate counsel for the purposes of establishing a pair of estate plans that function together may not appeal to some clients, motivated by financial reasons or practicality to retain one lawyer to set up both sides of the multi-family estate plan.

Another approach to representing spouses with more than one family is to identify and sign off on conflicts, rather than avoiding them absolutely. The red flags that suggest family disputes may arise are, of course, still important considerations for estate planners. If a single lawyer is responsible for the estate plan, he or she may be in a position to facilitate planning that benefits a second spouse and also an earlier family.

Regarding the issue of representing two spouses as clients under a joint retainer, drafting solicitors may wish to consult the Rules of Professional Conduct for guidance.

*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.