Must an estate's attorney, or a lawyer serving as personal representative, tell a surviving spouse about the right to claim an elective share?

Plain-English summary

The committee was asked whether an attorney for an estate in probate, or an attorney serving as personal representative, has an ethical or legal duty to inform a surviving spouse of the right to claim a one-third spousal elective share under S.C. Code Ann. § 62-2-210 et seq.

On the first question, the committee concluded no, absent a present or past attorney-client relationship with the surviving spouse. It began by identifying the client: noting the Rule 1.7 comment's two views (the fiduciary, or the estate including beneficiaries), it assumed the estate's attorney is retained by and owes duties to the personal representative, the fiduciary. It noted that if the attorney knew of an unacknowledged surviving spouse, Rule 3.3 would require disclosure to the probate court, and that the elective-share right is statutorily exercisable only by the spouse or the spouse's attorney-in-fact. The committee cautioned that duties are highly fact-sensitive and a conflict potential arises if the attorney represents or formerly represented the spouse, or if the spouse is the personal representative, in which case Rules 1.7 and 1.9 apply. Where there is no attorney-client relationship and the spouse is unrepresented, Rule 4.3 requires the attorney to make reasonable efforts to ensure the spouse understands the attorney's duty runs to the personal representative, giving the spouse no advice other than to seek counsel.

On the second question, the committee concluded a lawyer acting as personal representative has no per se ethical duty to inform the spouse, because in that role the lawyer is not representing a client, so Rules 1.7, 1.9, and 4.3 do not strictly apply. The lawyer-personal representative should nonetheless ensure that beneficiaries such as the surviving spouse understand the lawyer's role and are not misled into believing the lawyer represents them, since such a reasonable belief could create an attorney-client relationship with its attendant duties.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must the estate's attorney tell the surviving spouse about the elective share?

A: The committee concluded no, absent an attorney-client relationship with the spouse; the attorney's duty runs to the personal representative.

Q: What must the estate's attorney do toward an unrepresented spouse?

A: Under Rule 4.3, the attorney must take reasonable steps so the spouse understands the attorney represents the personal representative, and may advise the spouse only to seek independent counsel.

Q: Does a lawyer serving as personal representative have a duty to inform the spouse?

A: No per se ethical duty, because the lawyer is not then representing a client, but the lawyer should ensure beneficiaries are not misled into thinking the lawyer represents them, which could create an attorney-client relationship.

Q: When does a conflict arise?

A: The committee flagged conflict potential under Rules 1.7 and 1.9 if the attorney represents or formerly represented the surviving spouse, or if the spouse is the personal representative.

Background and rules framework

The opinion applied Rule 4.3 (dealing with an unrepresented person), Rule 1.7 (conflicts, and its comment on identifying the client in fiduciary representations), Rule 1.9 (former clients), and Rule 3.3 (candor to the tribunal), against the statutory backdrop of the elective-share provisions. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.3 / Model Rule 4.3: dealing with an unrepresented person.
• South Carolina RPC 1.7 / Model Rule 1.7: conflicts of interest (identifying the client in fiduciary matters).
• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients.
• South Carolina RPC 3.3 / Model Rule 3.3: candor toward the tribunal.

Statutes:

• S.C. Code Ann. §§ 62-2-210 et seq., 62-2-203: spousal elective share and who may exercise it.

See also

• SC Bar Ethics Op. 94-14: Imputed Conflict in an Estate Matter
• SC Bar Ethics Op. 94-07: Contacting an Unrepresented Accident Victim

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-34/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-34

1. Does an attorney for an estate in probate have an ethical and/or a legal duty to inform a surviving spouse of his/her right to claim a one-third (1/3) spousal elective share of the probate estate under Section 62-2-210 et seq. S.C. Code Ann. 1976, as amended?

2. Does an attorney acting as personal representative for an estate in probate have an ethical and/or a legal duty to inform a surviving spouse of his/her right to claim a one-third (1/3) spousal elective share of the probate estate under Section 62- 2-210 et seq. S.C. Code Ann. 1976, as amended?

Summary:
1. No, in the absence of a present or past attorney client relationship with the surviving spouse, the attorney for an estate in probate has no ethical duty to inform the surviving spouse of the right to claim an elective share. The attorney for an estate in probate is retained by, and owes a duty to the personal representative, who is fiduciary for the estate and its beneficiaries. The attorney for the estate should take care to see that the spouse does not rely on him for legal advice and is informed of the right to independent counsel. See Rule 4.3.

2. No, the attorney acting as personal representative has no ethical duty to inform the surviving spouse of the right to claim an elective share, because the attorney has the same fiduciary duty as any personal representative to beneficiaries of the estate. This duty is to act in the best interests of the beneficiaries of the estate within the framework of the provisions of the will. The attorney acting as personal representative should nonetheless take care that the beneficiaries not misunderstand the attorney's role by assuming that the attorney represented them.

Opinion:
1. Before determining the attorney's ethical duty, the attorney must ascertain the identity of the client. The Comment to Rule 1.7 notes that "under one view the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved." Rule 1.7 Comment. In the absence of specific facts to the contrary in the inquirer's case, it is assumed that "attorney for an estate in probate" in fact refers to an attorney retained by the personal representative. This attorney's duty is to advise the personal representative, the fiduciary, in the execution of his/her duties as a fiduciary; in so acting the fiduciary will serve the best interests of the estate. It is further assumed that the will does in fact acknowledge the existence of the surviving spouse, or if the will makes no such acknowledgment, that the attorney has no knowledge of the surviving spouse's existence. If the attorney has knowledge of an unacknowledged surviving spouse, the attorney is bound to disclose this information to the probate court under Rule 3.3.

Under the governing statute, the attorney for the personal representative has no ethical duty to inform the surviving spouse, because SC Code Section 62-2-203 provides that the right of election may be exercised only by the surviving spouse or the duly appointed attorney in fact of the surviving spouse.

The attorney should be cautioned that the rights and duties of the attorney in each case are highly fact sensitive. In the light of all existing facts, the attorney's duty may extend to the estate with its beneficiaries, creating a potential for conflict. Potential for conflict arises especially in the common situation in which the attorney represents, or previously represented one or more of the beneficiaries, as well as in instances in which the fiduciary does not stand at arm's length from the beneficiary. If in the case presented, for example, the attorney (a) still represents or (b) previously represented the surviving spouse, (c) and/or the surviving spouse is the personal representative, the attorney is duty bound to inform the parties of the potential for conflict, and to comply with all relevant provisions of Rules 1.7 and 1.9.

Finally, if the attorney has no attorney client relationship with the surviving spouse and the surviving spouse is not represented by counsel, the attorney is ethically bound by the provisions of 4.3 to make reasonable efforts to assure that the unrepresented surviving spouse properly understands the attorney's duty to the personal representative. In this case the attorney would give no other advice to the unrepresented surviving spouse than the advice to seek counsel.

2. An attorney acting as personal representative has no per se ethical duty to inform the surviving spouse of the right to the elective share. Strictly speaking, because the attorney acting as personal representative is not representing a client, the provisions of 1.7, 1.9 and 4.3 do not apply, because these provisions on conflicts and dealing with unrepresented persons refer to situations where the attorney is representing a client. Nonetheless, the attorney acting as personal representative should be cautioned to see to it that actual and potential beneficiaries such as the surviving spouse properly understand the attorney's duties as personal representative; the attorney should take care that such persons not be misled into thinking that the attorney acting as personal representative represents them as their attorney. Should such persons reasonably believe this to be the case, an attorney client relationship with all the attendant problems would arise. (Note: This committee does not issue opinions on substantive law questions.)