An examination of the laws of individual property and transfers of wealth requires reference to two wholly separate areas of law: estate planning and family law. The specific laws in each of these two areas will have implications for the consequences of property holding and transfers, but with quite divergent intentions and results.
Generally, however, family lawyers and estate planning attorneys operate quite independently of one another. Each discipline is complex, and its practitioners are specialized to the point that it may be unreasonable to expect attorneys to be fully versed in both areas. Nonetheless, it is important for attorneys to recognize that their advice and actions in one context for one purpose may well have significant implications for the other, and it is incumbent on attorneys in both disciplines to at least advise clients of that concern.
Estate planning attorneys and family lawyers are consulted at very different stages in the family’s planning. Estate planning deals with transfers of property from one generation to the next or future generations. It focuses on tax and estate laws in order to plan for someone’s incapacity and ultimate death and to preserve family wealth and protect the common interests of the family. Family law deals with dividing property and income between separating spouses or RDPs with adverse interests at the time of a marital dissolution.
Thus, there is a significant contextual difference between the attorneys who handle these matters. Estate planning attorneys assume common goals of preserving wealth for future generations and minimizing taxes. Family lawyers assume adverse interests and seek to protect and advance the interests of their respective clients, generally to the detriment of the other spouse or RDP.
The two types of attorneys can also differ greatly in their relationship with the client and the family. The estate planning attorney may have a long-standing relationship with the family and will generally work with both spouses or RDPs and sometimes multiple generations of the same family. The family lawyer, who is brought in when the family is dissolving and the spouses or RDPs are adversaries, will meet the nonclient spouse or RDP only as the opposing party. The family lawyer enters an adversarial relationship, whereas the estate planning attorney works with the couple and family as a unit with mutual interests.