Can one lawyer represent both spouses in an estate plan that requires them to waive their elective-share rights?

Plain-English summary

A married couple, married 15 years with children from prior marriages and none together, asks a lawyer to jointly represent them in estate planning. They own their house as tenants by the entirety but keep most assets separate, and Spouse A has substantially more assets than Spouse B. They want separate assets to go to their respective children and jointly owned assets to pass to the surviving spouse. Because of the asset imbalance, Spouse B would have an elective-share claim that would defeat their intended plan, and there is no prenuptial agreement. The opinion asks whether the lawyer may give both spouses information about elective-share rights (yes), advise both whether to waive (no, qualified), prepare a mutual-waiver agreement (no, qualified), and advise on the estate plan after a waiver is executed (yes).

The opinion applies Oregon RPC 1.7. It concludes that providing general information about the elective share and its waiver to both spouses does not create a significant risk of materially limiting the lawyer's duties to either, because each spouse owes the other a fiduciary duty of full disclosure and fairness, so sharing the information is consistent with that duty. Advising both spouses on whether to waive the elective share, however, presents a current-client conflict under Oregon RPC 1.7(a)(2): a waiver gives up valuable rights, and the spouses' interests can diverge over prior-marriage children, unequal estates, differing sophistication, and life expectancy. On these facts (prior-marriage children plus an asset imbalance), the opinion concludes the conflict is very likely nonconsentable, because the lawyer's ability to give each spouse complete, competent, independent advice would be impaired by duties to the other, and joint representation also loses confidentiality between jointly represented clients.

The opinion concludes that in other circumstances a lawyer might reasonably believe joint representation is workable, where the elective share is unlikely to substantially affect the plan, there are no prior-marriage children, the estates are similar, both spouses are sophisticated and not susceptible to pressure, and they are similarly positioned on life expectancy; even then, written informed consent under Oregon RPC 1.7(b) is required. The same conflict analysis applies to preparing the waiver agreement: a lawyer who represents both spouses has a conflict, but a lawyer representing only one spouse may prepare a mutual-waiver agreement on that spouse's behalf, since both parties need not be separately represented. Finally, once the elective-share waiver has been executed, the conflict is eliminated and the lawyer may represent both spouses in their estate planning, absent other conflicts.

In practice

This opinion was revised in 2026 and interprets the current Oregon Rules of Professional Conduct. The opinion holds that joint representation of spouses is fine for general estate-planning information and for advice after a waiver is signed, but that advising both on whether to waive the elective share, or drafting the mutual waiver while representing both, is a current-client conflict under Oregon RPC 1.7(a)(2). Per the opinion, consentability turns on the facts: prior-marriage children and unequal estates make the conflict very likely nonconsentable, while aligned, sophisticated spouses with similar estates may allow joint representation with written informed consent. The opinion holds that a lawyer representing only one spouse may prepare a mutual-waiver agreement, and that the conflict disappears once the waiver is executed.

Common questions

Q: Can one lawyer give both spouses information about elective-share rights?

A: Yes. The opinion concludes that providing general information about the elective share and its waiver to both spouses does not create a significant conflict, because it is consistent with each spouse's fiduciary duty to the other.

Q: Can the lawyer advise both spouses on whether to waive the elective share?

A: No, qualified. The opinion concludes advising both spouses on whether to waive is a current-client conflict under Oregon RPC 1.7(a)(2), and on facts like prior-marriage children and unequal estates it is very likely nonconsentable.

Q: Can the lawyer draft the agreement waiving the elective share?

A: Only for one spouse. The opinion concludes a lawyer representing both spouses has a conflict, but a lawyer representing only one spouse may prepare a mutual-waiver agreement on that spouse's behalf.

Q: Can the lawyer help both spouses with the estate plan after they waive?

A: Yes. The opinion concludes that once the waiver is executed and the elective-share issue is eliminated, the lawyer may represent both spouses in preparing their estate plan, absent other conflicts.

Background and rules framework

The opinion interprets Oregon RPC 1.7 (current-client conflicts), including the personal-and-third-party material-limitation conflict in 1.7(a)(2) and the consent requirements of 1.7(b), corresponding to Model Rule 1.7. It applies Oregon's elective-share statutes (ORS 114.600 to 114.725) and case law on spousal fiduciary duties and joint representation.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts; material limitation; informed consent)

Statutes:

• ORS 114.605, ORS 114.620 (elective share and its waiver)

Cases:

• In re Plinski, 16 DB Rptr 114 (2002), reprimand for representing both spouses with adverse interests
• In re Marriage of Eltzroth, 67 Or App 520, 679 P2d 1369 (1984), lawyer as scrivener for both spouses

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-86 (rev 2026) (joint representation of spouses)

See also

• OSB Ethics Op. 2005-86: Representing Husband and Wife
• OSB Ethics Op. 2005-28: Representing Both Sides in an Adoption
• OSB Ethics Op. 2006-176: A Lawyer in Multiple Roles in a Real Estate Transaction

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2018-194.pdf