[WSBAPT] same-sex spouses and property status agreements

[Douglas Bratt]

I am clear, as I think most of our listmates are, that Pre-Nuptial Agreements require independent counsel, one for each party because the interests of the two parties to the agreement are clearly adverse.

Look at what you are dealing with:  A couple with a significant gulf between themselves as to how much separate property each party has, at least as to their relative ownership of the house.  There is apparent interest in converting their separate property interests into community property.  That just appears to be the reverse of the Pre-Nup in which people are trying to define what is separate and what shall be considered to be community and the effects thereof.  In your case, how can one attorney possibly take on the responsibility of "advising them of the pros and cons of converting the home to community property now that they are married?"

Their interests are clearly adverse to eachother.  One party (the owner of the lesser portion of the house) will make out much better than the person giving up that person's majority ownership of the house.

You cannot possibly advise both parties, and stay out of a conflict situation.  I would suggest that you not try to take this task on in its present posture.

Send one away, after getting that person to waive any conflict you might have in continuing to represent the other, if that is what you want to do.  BUT, don't do it without the waiver.

OR, send them both away to their own separate counsel.

Good luck, but be very careful.

Best Regards,

Doug Bratt

Douglas J. Bratt
Lawyer

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sharon Rutberg
Sent: Tuesday, June 07, 2016 10:17 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] same-sex spouses and property status agreements

Good morning, listmates -

Clients are a same-sex couple who recently married and want to update their estate planning. Some years ago, when domestic partners, they signed a detailed property agreement setting out their respective separate interests in real property (their home). One partner put more into the home and accordingly had a much larger share. I want to advise them of the pros and cons of converting the home to community property now that they are married.

If you have dealt with this issue before and would be willing to help me think it through, I would appreciate hearing from you.

Sharon

Law Office of Sharon C. Rutberg, PS
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Seattle, WA 98107
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