If you are a married couple in California you may not be aware of a law in the Family Code that imposes a ‘spousal fiduciary duty’. Very simply, spouses have the duty to treat one another in good faith and to not take unfair advantage of each other in a wide range of conduct in the marriage.
This becomes important in estate planning, where spouses have mutual control over community property assets, and must tell each other about any property that is included.
This duty of fair dealing also applies when actually making the estate plan, where there cannot be any instance of coercion or undue influence of one spouse over the other.
The choice of using a will or trust, selection of heirs and how assets are distributed must all be mutually agreed to, and the help of an estate planning attorney may be essential to work out any differences.