[WSBAPT] When "Not" to Advise a Pre-Nup?

Tue Apr 7 15:18:20 PDT 2015

Victor,

Proceed with caution.  If the parties are not married, I would recommend a pre-nuptial agreement, and one of the tests as to whether such a contract will be enforced is whether both parties had independent legal counsel.  If the parties are already married, a postnuptial agreement should do it, with the same caveat about both parties having independent legal counsel. 

The typical prenuptial or postnuptial agreement is an attempt by one or both parties to get around the fact that in a marital dissolution proceeding, all of the property of the parties, both community and separate, comes before the court for a just and equitable distribution.  A well drafted prenuptial or postnuptial agreement clearly identifies what is separate property and what is community property, and makes it plain that neither party, nor their successors, can assert a claim to the separate property of the other in the event of divorce or death.

Having said that, this is an area of the law that frequently results in malpractice claims.  Be careful.   

Best regards,

Dewey

Law Office of Dewey W. Weddle, PLLC
909 7th Street
Anacortes, WA  98221

Telephone  360-293-3600
Fax        360-293-3700

----- Original Message ----- 

From: Maureen Wickert<mailto:wickertlaw at comcast.net> 

To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com> 

Sent: Tuesday, April 07, 2015 1:24 PM

Subject: Re: [WSBAPT] When "Not" to Advise a Pre-Nup?

Victor, To address your question, a spouse has what is considered separate property from prior marriage and a spouse (maybe the same spouse) has a sizeable inheritance coming to him or her.  RCW 26.16.010 defines both circumstances as the separate property of the spouse holding such property. However, things get muddy when the separate property is then commingled with community property. The spouse holding the separate property must source back property in question as his or her own separate property to overcome community property presumptions. The answer to your question is dependent on the intent of the husband and wife during their lifetimes and after deaths such as blended families (if any), disposition of their estates, with separate property is there separate obligations, etc? If they truly want to have their own separate property respected, they each should seek their own independent counsel. If the parties are married, you are really talking about a post-nuptial agreement. A lot of underlying questions.  

Very truly yours,
Maureen A. Wickert, Attorney at Law

       WICKERT LAW OFFICE

14900 Interurban Avenue South, Ste 255
        Tukwila, WA 98168
       Phone: 206-859-5502
         Fax: 206-260-9005
     www.wickertlawoffice.com
       wickertlaw at comcast.net

This electronic message contains information which may be confidential and/or legally privileged. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this transmission is prohibited. If you have received this electronic transmission in error, please notify me by telephone or by email immediately.

From: "Victor R" <mailboxro at gmail.com>
To: "WSBA Probate & Trust Listserv" <wsbapt at lists.wsbarppt.com>
Sent: Tuesday, April 7, 2015 1:02:11 PM
Subject: Re: [WSBAPT] When "Not" to Advise a Pre-Nup?

Ok, however, if both parties simply want a CPA, you'd still advise separate counsel?  WITH a prenup?

On Tue, Apr 7, 2015 at 12:52 PM, Maureen Wickert <wickertlaw at comcast.net<mailto:wickertlaw at comcast.net>> wrote:

Separate independent counsel is necessary for the two individuals as part of the procedural fairness of the agreement.  See 107 Wn.2d 479, Marriage of Matson, 1986.  

Very truly yours,
Maureen A. Wickert, Attorney at Law

       WICKERT LAW OFFICE

14900 Interurban Avenue South, Ste 255
        Tukwila, WA 98168
       Phone: 206-859-5502
         Fax: 206-260-9005
     www.wickertlawoffice.com<http://www.wickertlawoffice.com/>
       wickertlaw at comcast.net<mailto:wickertlaw at comcast.net>

This electronic message contains information which may be confidential and/or legally privileged. The information is intended for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this transmission is prohibited. If you have received this electronic transmission in error, please notify me by telephone or by email immediately.

From: "Eileen Peterson" <EPeterson at gth-law.com<mailto:EPeterson at gth-law.com>>
To: "WSBA Probate & Trust Listserv" <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Sent: Tuesday, April 7, 2015 12:37:42 PM 

Subject: Re: [WSBAPT] When "Not" to Advise a Pre-Nup?

I’d be very careful – prenuptial is always preferred course.  I generally never convert separate property to community property unless there is a very specific reason for doing so.  “I love you” is not a good enough reason.  The rights are different both at death and upon dissolution of marriage (and these are the areas of conflict).  If the clients elect to convert without separate counsel and you are willing to act for both (and I agree with John’s comment), you should provide very clear disclosures in the document indicating the potential for conflict and the recommendation for separate counsel.  My two cents, Eileen

Eileen S. Peterson
Attorney at Law
T 253 620 6419
F 253 620 6565

Click here to follow Lars in ourTrusts & Estates Blog<http://www.gthestateplanning.com/>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Victor R
Sent: Tuesday, April 07, 2015 12:23 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] When "Not" to Advise a Pre-Nup?

I don't see ANY conflict of any kind, however (and this is not an easy thing to say).

Their situation:  "What's mine is yours and what's yours is mine"

On Tue, Apr 7, 2015 at 11:38 AM, John Creahan <john at cairn-law.com<mailto:john at cairn-law.com>> wrote:

I would be very careful about attempting to represent both parties.

John

John Creahan

206-621-5848
www.cairn-law.com<http://www.cairn-law.com/>

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Victor R
Sent: Tuesday, April 7, 2015 11:31 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] When "Not" to Advise a Pre-Nup?

Members:

We got a potential situation where Prior Marriage Assets from one spouse AND a size-able Inheritance coming from the Mother of the 'other' spouse are involved.

1)  When do you NOT advise a pre-nup?  Under what conditions?

My thinking:  Simple CPA should to the job, assuming they want to comingle everything.

2)  ... I'm wondering Is there a Presumption of any kind where "Separate" Property becomes "Non-Separate" Property/Community Property?  Or once "Separate" Property, no time limit & Forever Separate Property, UNLESS a new Instrument is Drafted?

Your input is very well aprreciated, here.

thanks.

-- 

Victor Ro, Esq.
THE RO FIRM, P.S.C.
A Professional Services Corporation
5400 Carillon Point
Bldg. 5000, 4th Floor
Kirkland, WA 98033
Tel:  (206) 319-7072
Fax: (206) 319-4470

This communication is CONFIDENTIAL - ATTORNEY WORK PRODUCT - PRIVILEGED.  You are responsible for any damages arising in any way from its use.  Do not construe this correspondence or contents, thereof, as legal advice or as an engagement between an attorney and client.  If you received this communication in error, delete it immediately and permanently from all existing files.  NOTICE and PROHIBITION:  Do not copy, transmit, retransmit, distribute, or disclose this information contained, herein.

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbapt<http://mailman.fsr.com/mailman/listinfo/wsbapt>

-- 

Victor Ro, Esq.
THE RO FIRM, P.S.C.
A Professional Services Corporation
5400 Carillon Point
Bldg. 5000, 4th Floor
Kirkland, WA 98033
Tel:  (206) 319-7072
Fax: (206) 319-4470

This communication is CONFIDENTIAL - ATTORNEY WORK PRODUCT - PRIVILEGED.  You are responsible for any damages arising in any way from its use.  Do not construe this correspondence or contents, thereof, as legal advice or as an engagement between an attorney and client.  If you received this communication in error, delete it immediately and permanently from all existing files.  NOTICE and PROHIBITION:  Do not copy, transmit, retransmit, distribute, or disclose this information contained, herein.

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbapt<http://mailman.fsr.com/mailman/listinfo/wsbapt>

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbapt<http://mailman.fsr.com/mailman/listinfo/wsbapt>

-- 

Victor Ro, Esq.
THE RO FIRM, P.S.C.
A Professional Services Corporation
5400 Carillon Point
Bldg. 5000, 4th Floor
Kirkland, WA 98033
Tel:  (206) 319-7072
Fax: (206) 319-4470

This communication is CONFIDENTIAL - ATTORNEY WORK PRODUCT - PRIVILEGED.  You are responsible for any damages arising in any way from its use.  Do not construe this correspondence or contents, thereof, as legal advice or as an engagement between an attorney and client.  If you received this communication in error, delete it immediately and permanently from all existing files.  NOTICE and PROHIBITION:  Do not copy, transmit, retransmit, distribute, or disclose this information contained, herein.

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com
http://mailman.fsr.com/mailman/listinfo/wsbapt

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com
http://mailman.fsr.com/mailman/listinfo/wsbapt
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20150407/4565e72d/attachment.html>