Can My Estate Planning Attorney Divulge My Information After I'm Gone?

The rules regarding attorney client privilege and confidentiality are sacrosanct. These rules protect most communications between clients and their attorneys. This is necessary to ensure that clients receive competent legal representation by encouraging full disclosure by the client without the fear that the information will be revealed to other parties. This protection includes preventing the attorney from being compelled to testify against their client.

The general rule is that the attorney client privilege does not cease upon the client's death. There is no general posthumous exception. In fact, the U.S. Supreme Court upheld this more than 20 years ago in quashing an attempt to subpoena attorney-client conversations between Deputy White House Counsel Vince Foster and his attorney that took place days before Foster's death.

Nevertheless, there are a few specific exceptions. In Minnesota, one such exception is the testamentary exception to privilege and confidentiality. This exception has been recognized under Minnesota law since the 1920s. However, the courts make distinctions between situations involving disputes initiated by heirs or next of kin, versus those involving third parties (e.g., creditors) seeking privileged information to establish claims against the estate. In the latter situations, Minnesota law does not allow the application of the testamentary exception to those third parties.

What this means is that the court can require that an attorney hand over privileged information in cases where a claimant, such as a beneficiary, heir, or omitted next of kin, has an interest in the deceased client's estate. In most cases, the attorney subject to the court's disclosure request will have no choice but to comply with the request. But the court will not allow a third party, such as a creditor, to access to the decedent's privileged information.

When communicating with your attorney to discuss your estate plan, it is important to know that your information has protections that apply while you are alive. During your lifetime, your heirs, beneficiaries, and other persons cannot demand to obtain your privileged and confidential communications between you and your attorney. 

However, after you pass, it may be possible for certain persons to request such information, perhaps in a Will contest. Or a descendant may have questions about your testamentary intentions, questions that cannot be answered after you are gone.

While no Will is infallible, a well-crafted document can lessen the risk of it being contested. Talking to a qualified Minnesota attorney is the first step in protecting your estate assets.