Most couples have joint ownership of their home and other properties, which means that if one of them dies, the survivor will inherit their share. If one of them wishes to leave their share to someone else, they should prepare a Will.
If you are considering divorce or are looking at estate planning we will ask you to consider making a Will or amending an existing Will right at the start because if you should die before the conclusion of the divorce (Decree Absolute or DA) your surviving spouse could still inherit from you.
When a married couple or civil partners make Wills they usually prepare ‘mirror wills’, which means that both parties express the same wishes and make the same provision (or very similar) for each other. Often the husband will leave everything to his wife/civil partner and if she/he had already died, everything to his children equally and likewise for wife in reverse. The two Wills essentially mirror each other. When reviewing or preparing a Will or Wills, it is important to note how your property or properties are held.
Joint Ownership
Most spouses/civil partners own their family home and other properties as ‘joint tenants’. This means that they both have equal interests in the property. If one of them dies, the survivor will automatically inherit the deceased’s share under the rule of survivorship. If in these circumstances one of them made a Will leaving their share in the family home to somebody else, that legacy will be ineffective.
If that is not what you want, then one solution is to ‘sever’ the joint tenancy and convert it into a “tenancy in common”. Where property is held in this way, each party owns a specific share, which can be passed on under the terms of their Will.
It is important therefore, when considering divorce proceedings or estate planning, to think about severing any joint tenancy. This will enable both parties to make a Will leaving their respective shares of the property to other members of the family, such as children which also protects the asset in some cases.
It is not necessary to obtain your spouse’s consent before severing a joint tenancy; a suitable notice can be served on the spouse/civil partner and then lodged with HM Land Registry (if the property is registered) or with the Title Deeds (if the property is not). For more information on the difference between ‘joint tenants’ and ‘tenants in common’ please see our previous article here.
Please contact our private client team to find out more and discuss your options.