By Fran-Marie Silveri, JD
As estate planning attorneys, our paramount responsibility is to guide clients through the intricate terrain of planning for incapacity and death. Client representation always poses specific ethical and practical challenges, such as properly addressing their goals and needs, checking for conflicts of interest, and maintaining confidentiality (or using confidentiality waivers where appropriate). When it comes to representing married couples jointly, the considerations and complexities multiply, necessitating a more nuanced approach that addresses both individual and joint interests. This article delves into some of the issues to consider throughout all phases of the relationship when representing married clients.
Marketing Considerations
Successfully marketing estate planning services to married couples is similar to the strategies and approaches common in marketing targeted at other demographics. As with any demographic, it is crucial to understand the prospects’ needs and concerns: for married couples, such concerns often revolve around securing their family’s future and safeguarding their assets for the benefit of their loved ones. Tailoring marketing messages to emphasize peace of mind, protection, and legacy preservation resonates well with this demographic. Additionally, when marketing to married couples, attorneys must remember that they seek to garner the interest of two different people to motivate them to take action. Your marketing content should include the multitude of benefits that their estate plan can offer along with the individual concerns that it can address, so both partners feel equally engaged and motivated to pursue the process.
One way to specifically appeal to married couples in your marketing efforts is to address common misconceptions that may have led them to believe estate planning is unnecessary. Recent statistics indicate that only 48 percent of married couples surveyed have an estate plan. While the study does not identify the reasons for this failure to plan, the following misconceptions may play a role:
- Married couples may mistakenly believe that one spouse can automatically step in to make medical and financial decisions for an incapacitated spouse and that a surviving spouse will automatically inherit the property of a deceased spouse.
- Married couples may believe that the only planning they need to do to avoid court involvement is to ensure that their assets are jointly owned or they have designated beneficiaries.
- Married couples may believe there is no reason to create an estate plan because their children are adults who no longer need a guardian if both spouses pass away.
Attorneys should consider highlighting these common fallacies in their marketing efforts. They can write blog articles to post on their social media accounts or websites that address the importance of incapacity planning and explain a spouse’s rights, or lack thereof, to step in for an incapacitated spouse or inherit assets that are in the deceased spouse’s sole name and do not have a designated beneficiary.
To further engage married-couple prospects, attorneys can consider holding date night seminars and treating the attendees to wine and appetizers or offering seminars through a school community or other family-centric organization. If attorneys would like to attract families with young children, they could partner with a babysitting service or school personnel or provide fun activities for children so parents do not have to arrange childcare to attend the seminar.
The Initial Contact
Most practitioners have a standard procedure to process the initial contacts they receive from prospective clients. While all of the standard tasks, such as asking screening questions, taking down basic contact information, and scheduling a meeting, should be completed when talking to married-couple prospects, attorneys should consider adding additional steps or requests for this demographic.
First, when requesting documents from prospects, be sure to inquire about any marital agreements (prenuptial or postnuptial agreements), property agreements (e.g., transmutation agreements), and divorce decrees from prior marriages. Each of these documents may impact the estate planning process by placing restrictions on the ability of either spouse to dispose of property, changing entitlements of the spouses, or restricting the ability to name beneficiaries of certain policies (which is especially common in the context of divorce decrees, which often require that an ex-spouse be named as beneficiary of certain policies). Practitioners may discuss this as part of their initial contact with prospects, ask prospects to bring such materials to an initial meeting, or discuss and review such documents at another point in time, but all practitioners working with married (or divorced) people should routinely inquire about such materials. If such documents exist—or need to be created—practitioners would be well-advised not to finalize any estate planning materials until after reviewing them and to explain the importance of reviewing these documents to clients (who may be resistant to performing the search necessary for these materials until they understand how critical they are to the estate planning process).
Next, to ensure that each spouse’s needs are fully represented and addressed, attorneys representing married couples jointly may wish to craft their initial intake paperwork to ensure that each spouse provides their own answers. This may be particularly relevant if the attorney inquires about their goals for the estate planning process, ownership and values of their individual assets, and who their trusted decision-makers are. Many practitioners have two separate intake forms: one for married couples and one for unmarried clients. Others simply have each spouse fill out the standard individual form.
Finally, the attorney or staff member setting up the initial consultation meeting should insist that both spouses are present. At this meeting, attorneys will gauge each spouse’s priorities and motivations to determine if joint representation is appropriate. Further, if only one spouse attends the meeting, the spouse in attendance will likely conclude that meeting with “thank you, but I have to talk it over with my spouse”; this causes delays. Failure to ensure that both spouses are present can delay a prospective client’s commitment to working with the practitioner, it is an inefficient use of time for all concerned, and it can create delays and impediments to effective, efficient estate planning.
The Initial Consultation and Engagement
Effective communication is the cornerstone of successful estate planning, particularly when working with married couples. The initial consultation with prospective married clients is a significant time to encourage open dialogue between spouses and facilitate a comprehensive understanding of their shared and individual wishes.
General Considerations When Meeting with Married Potential Clients
For most estate planning practitioners, the main goals of the initial consultations with prospective clients are to . . .
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