When Parents Get Involved: Ethical Risks in Estate Planning and Divorce Prep

Summary

Podcast Summary: "When Parents Get Involved: Ethical Risks in Estate Planning and Divorce Prep"

ACTEC Trust & Estate Talk
Date: February 10, 2026
Host: ACTEC Fellow Kristin Yokomoto
Guests: ACTEC Fellows Carol Bass (New York City) and Shari Leviton (Boston)

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Episode Overview

This episode of ACTEC Trust & Estate Talk delves into the complex and increasingly common scenario where parents become heavily involved in their adult children's estate planning and divorce preparation, particularly around prenuptial agreements. The discussion highlights the ethical risks, boundary issues, and best practices that attorneys must navigate when balancing the interests and roles of multiple family members, all while safeguarding privilege and maintaining professional ethics.

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Key Discussion Points & Insights

1. Family Dynamics in Legal Planning

• Increased Parental Involvement:
  Attorneys are encountering more cases where parents instigate and shape their children's premarital and estate planning decisions ([01:25]).

  • Carol Bass notes: Parents often initiate contact, express concern (or disapproval) about prospective spouses, and push for or against premarital agreements.
  • Shari Leviton adds: Prenuptial agreements often become a "whole family affair," with adults relying on parents' input for decision-making.

• Modern Parenting Trends:

  • "Helicopter" and "snowplow" parenting result in adult clients who struggle with independent choices ([03:01]).
  • Leviton: "I think a lot of this is...kind of the phenomenon we see...with this helicopter parenting and snowplow parenting."

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2. Identifying & Communicating with the Client

• Establishing the Client Relationship:

  • Stress on clarity about who the actual client is—the child or the parent? ([06:28])

  • Ensure engagement agreements clearly identify the client (the adult child), not the parent even if the parent is funding legal fees.

  • Leviton: "I need to hear from my client because the child is the client. Technically, I've had a parent who’s a lawyer want a word version of the document to edit it. And I've said there's going to be one lawyer here, not two." ([04:11])

• Attorney Conflicts:

  • Risks of dual representation arise when the same lawyer is involved with both the parent’s and the child’s planning ([02:30]).
  • Withholding or sharing information between parent and child without consent can put the attorney in ethical peril.

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3. Attorney-Client Privilege Risks

• No Parent-Child Privilege:

  • Conversations with both parents and adult children present are generally not privileged ([07:03]).

    • Only a handful of states have a limited privilege (mainly for minors in criminal matters).

  • Carol Bass: "The general rule for attorney-client privilege is that the presence of a third party will cause a waiver of attorney-client privilege." ([07:03])

  • Rare Exceptions:
    The Arizona Akamazo case is cited as an outlier where the court upheld privilege due to the daughter’s dependence on her parents for legal understanding ([08:08]).

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4. Ethical Rules—Duty to One Client

• Primary Obligation to the Client:

  • Even if parents are present or involved, the attorney’s duty is strictly to the client (child or divorcing party) ([09:24]).

  • Bass: “There is one client, and it is the person who is being married or being divorced. The parents are not parties to the marriage or the divorce. And yet the ethical rules say you have an obligation to your client.” ([09:24])

• Direct Communication Required:

  • Attorneys must confirm that the client independently understands and agrees to all legal documents and strategies ([10:52]).
  • Bass: “I need to look them in the eyeball and make sure that this is what they want.” ([10:52])

• Managing Information Sharing:

  • Cannot share details or copies of documents with parents or family offices unless the client gives informed consent ([13:14]).

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5. Practical Dilemmas and Solutions

• Handling Requests for Information:

  • Parents or family offices often request copies of prenuptial agreements or asset disclosures. These cannot be shared without explicit client consent ([13:14]).

• Asset Disclosure Tensions:

  • Parents may resist full disclosure of family assets, potentially undermining the validity of premarital agreements ([14:01]).
  • Leviton: "They can be very sensitive about what they want to share with their own child and with the in-law to be." ([14:01])

• When to Decline or Refer Work:

  • It may be prudent to refer the child’s premarital representation to another attorney if you already represent the family; this avoids conflicts of interest ([12:45]).

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Notable Quotes & Memorable Moments

• On Parental Over-Involvement:

  • Leviton [04:11]:
    “I've had the experience where the parent is answering the questions, child is sitting side by side. And when I say child, this is an adult about to get married...”

• On Clarifying Attorney Role:

  • Leviton [04:24]:
    “There’s going to be one lawyer here, not two. Take your pick.”

• On Privilege Waiver:

  • Bass [07:03]:
    “The presence of a third party will cause a waiver of attorney-client privilege.”

• On Client Consent:

  • Bass [10:52]:
    “I need to look them in the eyeball and make sure that this is what they want.”

• On Document Sharing Risks:

  • Bass [13:14]:
    “We can't just upload a copy of the documents. Or if we get permission, we have to separately ask, can we share the asset disclosure?”

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Key Timestamps for Important Segments

• [01:25] — Family involvement in initial planning
• [03:01] — Parenting trends affecting adult children’s independence
• [04:11] — Handling parental dominance in client meetings
• [06:28] — The importance of identifying the client and engagement agreements
• [07:03] — Attorney-client privilege and the risks of waiver
• [08:08] — The rare Arizona case on parent-child privilege
• [09:24] — Ethical obligations and the unique client relationship
• [10:52] — Ensuring client understanding and consent
• [13:14] — Sharing documents with family offices and confidentiality pitfalls
• [14:01] — Parental sensitivity over asset disclosure

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Closing Thoughts

The discussion underscores the need for estate and matrimonial attorneys to define clear boundaries, maintain ethical responsibilities, and proactively communicate the distinction between client and family interests. With growing parental involvement, attorneys must vigilantly protect client autonomy and confidentiality to avoid conflicts and safeguard the enforceability of legal agreements.

A succinct wrap-up from Carol Bass:
"[This is] a very important topic that doesn't get talked about enough." ([14:40])

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Transcript

[A]

When Parents Get Involved Ethical risks in estate planning and divorce prep that is the subject of today's ACTEC Trust and Estate Talk.

[B]

Welcome to ACTEC Trust and Estate Talk from the American College of Trust and Estate Counsel, a professional society of peer elected trust and estate lawyers in the United States and around the globe. This series offers professionals best practice advice, insights and commentary on subjects that affect our profession and clients. And now our ACTEC Fellow host with today's topic.

[A]

This is ACTECH Fellow Kristin Yokomoto of Costa Mesa, California. Parents inserting themselves into their adult children's legal planning isn't new, but it's increasingly messy. Between ethical rules, privilege concerns, fee arrangements and the emotional swirl of prenups and divorce conversations, attorneys can find themselves managing not one client but an entire family dynamic. When parents attend meetings, fund the representation or influence the strategy, the result could be muddled at tech Fellows Carol Bass of New York City and Shari Leviton from Boston join us today to walk through the risks, boundaries and best practices for managing third party involvement while protecting privilege and maintaining ethical footing. Welcome, Carol and Shari.

[C]

Thank you. So many of us have had the experience where the first call that we get is from the senior generation, the parent saying, gee, my daughter is getting married and I either like or I don't like my client's spouse. I'm worried about our family assets. Tell me about premarital agreements. Maybe we collectively want one or we don't want one. And then the next conversation we'll have my daughter join and we'll all talk about this together. And sometimes as you proceed, it turns out that the parents and the daughter in this case are not on the same page. Daughter doesn't care or doesn't want to protect the same things in the same way. And perhaps it's the first time that daughter is learning about the extent of the wealth already set aside in irrevocable trusts and partnership agreements. And it puts the attorney often in a conflict. If we already represent the parents in their own planning and the child in a premarital agreement, none of us wants to get the call from the daughter that says I really don't want this agreement but don't tell my parents or the parents who call and say we really don't like our son in law to be so whatever you can do, I don't think this thing is going to last. Make sure that it is completely bulletproof. Carol, what's your experience here?

[D]

So I have the same experience. I'm seeing this more and more often where the prenuptial agreement becomes a whole family affair and everybody's involved and everybody wants to put in their two cents and that the child who's getting married wants their parents to be on every call, that they have trouble sometimes making decisions at an adult level without their parents presence. And I think a lot of this is, you know, kind of the phenomenon we see in other areas of the world with this helicopter parenting and snowplow parenting. And for people who don't know, you know, helicopter parenting is kind of this over parenting where parents are involved in every aspect of their children's lives and managing everything for them. And I think the generation we're seeing now for prenups have grown up and a lot of them have grown up in that kind of environment and they're kind of anxious and not fully developed adults. Are you seeing that as well, Shari?

[C]

Absolutely. And to the extent where I've had the experience where parent is answering the questions, child is sitting side by side. And when I say child, this is an adult about to get married and have a family. And the parent is answering the questions. And I've had the experience where the parent sees the final version of the agreement and says, yes, we're signed off. And I say I need to hear from my client because the child is the client. Technically I've had a parent who's a lawyer want a word version of the document to edit it. And I've said there's going to be one lawyer here, not two. Take your pick. But it's not just being a little bit of a consigliere or bouncing a particular economic decision to go one way or another, but it's wholesale, every bit of the decision regarding the agreement itself. And what we really caution is at the end of the day, the first question on a deposition in an ugly litigated divorce that you never want the client to have to answer is, is this the agreement that you intended? Is this the agreement you want? Did you know what was in it? Parents may be long dead at that point, you know, so we have to make sure that this is our client's wish. But it puts us in a potential conflict because if we get told, don't tell my parents, and we know that the parents whom we represent as independent clients have an estate plan that provides for an outright bequest or gives a broad power of appointment at death, we are not at liberty, as we'll discuss in a moment, to just tell the parents if the daughter in my example says, don't tell my parents. So we're trying to Navigate counseling the daughter to talk with her parents. And otherwise we're going to find ourselves in a position where we can't represent anybody and we have to withdraw. So let's talk a little bit about privilege and then separately the ethical obligations here.

[D]

Right. Just before I get into privilege, just to continue a bit on what you said, I think it's really important to make clear who the client is, to make sure that the child is the one that's signing the engagement agreement and maybe even thinking about if we need something in our engagement agreement or separate, if the parents are going to be involved, to just make clear who gets to know what and who the client is. And so that everybody is clear from the beginning.

[C]

Absolutely. We can't be in a position where we don't know and step over a line that's 100%.

[D]

So on the privilege side, you know, for all these conversations we're having where the parents are on every call and in every meeting, I think it's really important for us to keep in mind that there is no parent child privilege for the most part. It's not like marital privilege. And the general rule for attorney client privilege is that the presence of a third party will cause a waiver of attorney client privilege. So if you're sitting in a room with the person getting married and their parents already, that's a non privileged conversation. And for the kids who are going back and talking to their parents and telling them every detail, the question becomes, are those conversations privileged? And for the most part, that answer is going to be no. There are a handful of states, I think five or six, that have a limited statutory parent child privilege, but limited for the most part to criminal actions and to minor children.

[C]

And it won't cover this. And that includes trustees, family, office personnel, not just the parents. The only state that has a case that we're aware of is Arizona, where I practice. And it's the Akamazo case, where over a decade ago, grown daughter and her parents met with attorney and there was credible evidence. The daughter testified that she was a novice in dealing with legal matters and she had her parents to help explain things to her, help translate. Not language wise, but the legalities to meet with the lawyer. And the appellate court in Arizona bought that argument. It is an oddity, I agree. And I wouldn't be absolutely certain that it would withstand scrutiny in other circumstances. It may have been very fact specific, as so many matrimonial cases are.

[D]

That's right. I agree that it's an outlier. And this is probably A court of equity type situation where the judge, for whatever reason, felt like they wanted to get to that result. Yeah.

[C]

And so this is really, if you get to litigation, whether there's privilege on those conversations that led to the making of the agreement and its terms. Same thing in a divorce. When parents come to settlement meetings, what should we offer, Et cetera. The ethical rules are most important. Here we talked about who is the client in the matrimonial matters. There is one client, and it is the person who is being married or being divorced. The parents are not parties to the marriage or the divorce. And yet the ethical rules say you have an obligation to your client. The model rules say you must adequately represent your client's interests. You must explain fully to your client and ascertain that you have received sort of a knowing confirmation that this is what the client wants, that you have to communicate fully. You can't have a surrogate that delivers the information. You cannot use the parents as the interim deliverer of information, which sometimes gets.

[D]

Asked so so frequently, or the ch or the person getting married or the person in the divorce is completely disconnected from the situation. And just relying on the parents, you really have to get their attention.

[C]

I've had a zoom meeting where the grown client is sitting there, you know, on the phone, eyes downward and not a clue on my part whether they're even listening and participating. It's sort of. Huh. And I need to look them in the eyeball and make sure that this is what they want. And I'm not allowed to reveal information about the representation without informed consent. And that goes to the who are we sharing information with and when? And it comes up in subtle ways that seem very normal. So an agreement is in place. You've surmounted all these other obstacles. And a year or two later, parent whom you represent for estate planning calls and says, I want to make a gift or a loan to my child or the couple to buy a new home. How should I do it? What does their agreement say?

[D]

Right. Right. And what if you.

[C]

How does that inform.

[D]

Yeah. And what if you go back to your earlier example of the child who didn't want the agreement and said, don't tell my parents, and they're your clients too.

[C]

That is exactly right. Which was why I can't be in that position. And it comes up in the most innocuous ways, or we're changing our estate plan and we want to be more fulsome in the powers that we give our children. And you know something that would suggest not a good idea here. And the same is true. Even a premarital agreement or not, child, who has become your client in the estate planning sense, calls you up and says, my marriage is kind of rocky. I'm not at liberty to pick up the phone and say to the parents, you need to change your estate plan today. Things aren't good here.

[D]

Right? I think that's right. And really important when we're taking on these representations. And for instance, if you're an estate planner and you represented a client family in place planning for years and years and they ask you, oh, can you represent child in a prenup? Maybe you want to think before you take that on. If it's going to put the other relationship at risk, maybe it makes sense to just farm that out sometimes because you're in a conflicted. You're in a potentially conflicted situation.

[C]

And even when the family office says, can you send us a copy of the signed premarital agreement? We house copies of all of the signed documents for the family. We don't know where it goes from there. So we can't just upload a copy of the documents. Or if we get permission, we have to separately ask, can we share the asset disclosure?

[D]

Right.

[C]

Because that's yet another step that goes along. And so each step of the way, the onus is on us as the planners to have robust conversation with our clients about where things can go wrong and make sure that we have good direction and we don't become part of the problem later on, right?

[D]

I think that's right. And you brought up the asset disclosure. And I find that's one of the areas where the parents get most involved one, because they have the information oftentimes, but they can be very sensitive about what they want to share with their own child and with the in law to be. And it's up to us to relay how important a fallen adequate disclosure is in a premarital agreement and how it's protecting them. That doesn't always work either.

[C]

I think this is a good synopsis. Of course, the actual details vary from client to client. And we're happy to have presented this today.

[D]

That's right. It's a very important topic that doesn't get talked about enough.

[C]

Thank you.

[D]

Thank you.

[A]

Thank you, Carol and Shari. That was a very informative and interesting conversation and a great reminder of best practices when dealing with this type of situation.

[B]

Thank you for listening to this episode of ACTEC Trust and Estate Talk, the podcast series about wealth planning matters from the American College of Trust and Estate Council. To find an ACTEC lawyer near you. Visit actec.org Please subscribe to this series and leave us a rating or a review.