[WSBAPT] Prenuptial Agreement - Separate Counsel Requirement

Thu May 19 17:22:34 PDT 2022

Dear Bo:
Review Friedlander, the original case on such agreements.
Kerry A. Richards

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Boaz Weintraub <bw at weintraub-law.com>
Sent: Thursday, May 19, 2022 1:08:43 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Prenuptial Agreement - Separate Counsel Requirement

The opportunity to obtain independent counsel is the minimum requirement under the second prong of the prenup test for procedural fairness. See attached article.

However, to ensure enforceability, each party should be represented by independent counsel. There's no reason to risk enforceability, or a possible malpractice claim or complaint later, by not insisting the other party obtain independent counsel.

Boaz "Bo" Weintraub  | JD, LL.M.

Weintraub Law Office, PLLC

T (425) 374-4045<tel:%28425%29%20374-4045> |  F (425) 274-7019<tel:%28425%29%20274-7019>

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Thank you.

On Thu, May 19, 2022 at 10:20 AM G. Geoffrey Gibbs <ggibbs at andersonhunterlaw.com<mailto:ggibbs at andersonhunterlaw.com>> wrote:

My two cents worth – you cannot ethically represent both parties (which you knew).  There is not a per se requirement that both parties have legal counsel but the chances of the PreNup being sustained are better if they do.  The development of case law in this area has changed significantly since In Re Matson.   The current two prong test for upholding (or not) prenuptials should be reviewed and kept in mind.

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Neli Espe, J.D. - Olympic Legal
Sent: Thursday, May 19, 2022 9:57 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Prenuptial Agreement - Separate Counsel Requirement

Dear Listmates,

I have always drafted Prenuptial Agreements representing one party to the pending marriage with the other party being represented by his/her own counsel.

Now, I have a couple who have lived together for many years and the PNC insists that the other party does not want to engage independent counsel.

I cannot find the authority for this requirement. Every way you look at it, ethically and legally (potential challenge), this is the best approach, but is there authority requiring it?

Thanks,

Neli

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   Neli Espe, J.D., Olympic Legal

                360.630.3635

2114 Commercial Ave., Anacortes

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