Though estate planning is a prudent, responsible and arguably sacred initiative, there are many junctures in the process that can potentially lead to spousal feuding:
- Spousal Hesitancy: One spouse may not actually wish to do their estate plan. In this case, they may have been “dragged” into the process by their spouse. Here, it may be helpful for the initiating spouse to notify the lawyer of their spouse’s hesitation and specific concerns, such that the lawyer can address them and explain the advantages of estate planning at the start of the meeting.
- Decision Disputes: There may be aspects of the plan for which the spouses don’t agree. Again, the lawyer’s role would be to reasonably foresee the legal and practical implications of each spouse’s perspective, remind the spouses from time to time that they and their lawyer are on the same team, and where appropriate, encourage the spouses to take some time to think about the alternatives and comments made, which will hopefully result in each spouse making a reasonable, yet voluntary decision. Each spouse should clearly state the reason they wish to plan a certain way such that the lawyer can present alternatives to achieving both spouse’s objectives, where possible.
- Understanding Legal Concepts: Sometimes, one spouse grasps legal concepts faster than the other spouse, even when the lawyer explains them using ordinary language. In these cases, tension can quickly rise as the quicker spouse becomes impatient, perceiving the other spouse is slowing down the process, being difficult, etc. In my experience, it again, helps to remind them of the “team” aspect of the exercise, and the importance of everyone understanding the implications of the decisions they’re making. Furthermore, it is of the utmost importance that each spouse’s wishes and intentions are reflected in the resulting plan, which cannot happen without adequate knowledge and understanding.
- Different Beneficiaries: If possible, couples doing joint estate planning should create Wills that work together. For example, if the couple intends to leave everything to the surviving spouse, they should then decide who will receive joint property after both have died. Here, each spouse should have the same designated beneficiaries. If spouses have separate lists of beneficiaries in their respective Last Wills, marital property is ultimately left only to one spouses’ loved ones. The result: the other spouse’s family can end up being disinherited.
If each spouses desires different beneficiaries than the other, one way to address this is to divide marital property into fractional shares. Each spouse could then write their own list of beneficiaries, ensuring the ensuring the shares add to 100%.
Though you’re planning your estate as a couple, you’re still individuals with different personalities, opinions, values and/or understanding. Thus, your lawyer should have sufficient emotional intelligence to discern and navigate you through such differences towards a successful outcome. Depending upon the circumstances, the process may also be facilitated with the services of other professionals, such as a counsellor or therapist.
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact-finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.