Ashford International Law P.C.

Married couples often assume that they need a “joint” estate plan: matching wills, mirrored provisions, one set of instructions for the family. That assumption is usually mistaken, and for couples with ties to more than one country it can rest on a false premise. Even spouses who are represented by the same attorney each sign an entirely separate will, and each spouse decides independently what happens to his or her own assets. Whether a couple may be represented jointly at all, and whether a single document combining both spouses’ wishes will even be recognized as a valid will, are two different questions, and the answer to the second depends heavily on which country’s law applies.

Joint Representation Is Different from a Joint Will

The phrase “joint estate plan” is often used loosely to describe two different things. The first is joint representation: one attorney advising both spouses at the same time. The second is a joint will: a single document, signed by both spouses, stating how each of their estates will be distributed. An attorney may represent both spouses jointly while still preparing two separate wills, and, depending on the jurisdiction, a will signed by both spouses may not be recognized as a will at all. Each question is governed by a different body of law: the rules of professional conduct for the first, and the law of wills for the second.

When Joint Representation Is Appropriate

Joint representation works only when the spouses are in complete agreement, both about their marriage and about how their assets should be divided. That alignment is the only circumstance in which one attorney may represent both spouses in preparing their estate plans.

When a Conflict of Interest Requires Separate Counsel

Joint representation is not appropriate once a conflict of interest exists between the spouses. Common examples include:

• One spouse owns significantly more assets than the other.
• One spouse has children from a prior relationship.
• The spouses disagree about how their assets should be distributed.

In each of these situations, the attorney is ordinarily prohibited on ethical grounds from representing both spouses, and each must retain separate counsel.

The Duty of Loyalty

An attorney owes an undivided duty of loyalty to each client and must represent each client’s interests to the fullest extent the law allows (a duty formalized in Rule 1.7 of the ABA Model Rules of Professional Conduct, adopted with local variations in every US jurisdiction). Suppose one spouse, Spouse A, has few assets and children from a prior relationship. If Spouse A is also the attorney’s client, the attorney must argue for provisions that maximize payouts to Spouse A’s own family. That position may directly oppose the interests of Spouse B, who may wish to leave her separate assets, meaning assets that are not jointly titled, to her own relatives. Representing both spouses at once would require the attorney to advocate against one client’s interests in order to advance the other’s, which the duty of loyalty does not allow.

A Joint Will Is a Different, and Riskier, Document

Separately from the question of joint representation, spouses sometimes want to go further and sign a single joint will rather than two individual ones. The two documents carry very different legal consequences, and how a joint will is treated differs sharply from country to country.

United States. In most US states, a joint will is technically valid, but courts and estate planning attorneys generally advise against it. A joint will’s reciprocal provisions are often read as an implied contract by each spouse not to revoke or change the will after the other dies, freezing the surviving spouse’s ability to update the plan even where circumstances plainly call for it, for example to help a grandchild through school, to accommodate a later remarriage, or to sell property the will assumed would remain in the estate. Many states have adopted some form of Uniform Probate Code § 2-514, which limits when a will can be treated as this kind of binding contract, but the safer course for most couples is to avoid the ambiguity altogether by signing separate wills with reciprocal, but individually revocable, terms.

Germany. German law takes the opposite approach for spouses and registered civil partners: a gemeinschaftliches Testament, or joint will, is expressly permitted and is in fact the most common form of estate planning between German spouses (§§ 2265 et seq. BGB). Its most familiar version, the Berliner Testament, has each spouse name the other as sole heir on the first death, with their children named as heirs on the second death (§ 2269 BGB). Once the first spouse dies, the reciprocal provisions typically become binding, and the survivor generally cannot revoke or change them unilaterally (§ 2271(2) BGB). Only spouses and registered civil partners may use this form; between unmarried partners it is void.

France. French law goes further still, but in the other direction: a testament conjonctif, meaning any will signed by two or more people in a single document, is void outright, even between spouses or partners in a PACS (Code civil, art. 968). French law requires every will to be the personal, unilateral act of one individual, freely revocable at any time, so that no person’s testamentary freedom is constrained by another’s. A joint will validly executed in a country that permits one may or may not be given effect in France, and should not be relied on without advice from French counsel.

Why This Matters for Couples with Ties to More Than One Country

A form of will that is the standard, expected choice for a German couple, such as a Berliner Testament, is not a form a court in the United States is built to interpret, and it would be void outright if it purported to govern a French national’s estate. Conversely, a US-style will, drafted on the assumption that the surviving spouse can freely revise it later, may not achieve what a German couple actually wants if German law is expected to apply. Couples with assets, family, or citizenship connecting them to more than one of these systems should not assume that the approach that is customary, or even legally required, in one country will be honored, or even valid, in another. This is exactly the kind of conflict a cross-border estate plan needs to resolve deliberately, rather than default into, and it is a further reason each spouse’s will should be reviewed against the law of every country where it may need to operate.

Each Spouse’s Estate Plan Remains a Separate Decision

Subject to two limits, a spouse’s estate plan is not a matter for negotiation with the other spouse. The first limit is the surviving spouse’s statutory minimum share: an elective share in most common law states, or the surviving spouse’s own interest in the couple’s community property in the nine community property states, among them California. The second is any property the couple holds jointly with right of survivorship, which passes to the survivor regardless of what either spouse’s will provides. Beyond those two limits, each spouse may freely decide how to leave his or her own separate assets and is not required to discuss that decision with anyone, including the other spouse. The only circumstance in which it is advisable for spouses to coordinate with each other is when they have minor children together.

A spouse’s reluctance to share every detail of an estate plan with the other, or a preference for separate counsel, is not a sign that the marriage is in trouble. It is frequently the appropriate response to a genuine conflict of interest, and an attorney representing either spouse has an independent obligation to confirm that each is free of undue influence from the other, including by meeting with each of them alone.