What do you need to know about estate planning in Massachusetts with your partner if you are not married?
Estate planning is a crucial aspect of ensuring that your wishes are honored and your loved ones are cared for, especially for unmarried couples. Unlike married couples, who benefit from certain legal protections and tax advantages—such as the marital deduction that allows assets to pass between spouses free of estate tax—unmarried couples do not have these statutory safeguards. For instance, in the absence of a will, state laws dictate that an intestate estate will typically pass to next of kin rather than to an unmarried partner. This lack of automatic protection underscores the importance of tailored estate planning for nontraditional families.
The Importance of Tailored Estate Planning
Unmarried couples face unique legal considerations that married couples do not. Without the benefits of spousal rights, it’s essential for unmarried partners to proactively establish their estate plans. This might include wills, trusts, and powers of attorney, specifically designed to address their unique situation and ensure that their assets are distributed according to their wishes.
Conflict of Interest in Dual Representation
When unmarried couples embark on their estate planning journey, they often choose to work with the same attorney. This decision is frequently seen as a testament to their commitment and is approached with a sense of gravity. However, shared representation can pose potential risks, particularly if the relationship changes or if there is a significant disparity in assets or income between the partners.
Rule 1.7(b) of the Massachusetts Rules of Professional Conduct addresses this issue by requiring that a lawyer should not represent clients if the representation of one client will be directly adverse to another. There is an exception to this rule if the attorney reasonably believes that representation will not adversely affect either client and both clients provide informed consent after consultation.
In assessing whether joint representation is feasible, the attorney must consider factors such as the stability of the relationship and the transparency of each partner’s finances. For instance, if there is a concern about the relationship’s durability or if one partner’s financial situation is not fully disclosed, it may be prudent to recommend separate legal counsel for each party.
Ensuring Transparency and Confidentiality
When an attorney represents both partners, it is crucial to discuss and document potential conflicts of interest and confidentiality concerns. Both partners must acknowledge and consent to the possibility that information shared with the attorney might not be kept confidential from the other partner. This is particularly important when financial details are not fully transparent, as it may indicate underlying issues that could affect the estate planning process.
Furthermore, if a dispute arises involving the documents or matters handled during the joint representation, the attorney must refrain from representing either party in the dispute. To mitigate these risks, it may be advisable for each partner to have their estate planning documents reviewed by an independent attorney.
Conclusion
Estate planning for unmarried couples requires careful consideration and tailored strategies to address their specific needs. Understanding the implications of shared legal representation and ensuring that each partner’s interests are adequately protected can help prevent potential conflicts and safeguard both partners’ wishes. If you’re an unmarried couple looking to navigate these complexities, consulting with an experienced estate planning attorney can help you create a plan that offers peace of mind and legal protection.
If you have questions about estate planning with a romantic partner who is not your spouse, contact my office to set a free consultation at (781) 761-2148.
