When two or more people buy a house together, title to the property will usually be taken in joint names and frequently in equal shares. A survivorship destination is a clause in the title deeds that is commonly used in this situation, especially by married couples, and generally states that a property “is disponed to A and B equally between them and to the survivor of them”. The effect of a survivorship destination is to provide that on the death of the first in a couple to die, the title which belonged to the predeceasing partner will automatically transfer to the survivor, which can often be a convenient and less costly process for the surviving partner.
Taken at face value, it might seem that a survivorship destination would always be preferable given that there is no need for further conveyancing to be carried out following the death of one spouse in order to transfer their share in the home to the surviving spouse. However a survivorship destination is a contractual arrangement and should consequently only be included in the title deeds after careful consideration, for example:
- If one partner makes a Will purporting to leave their share in the house to their children, this would not cancel out the survivorship destination which would take precedence. This could be the case even if a couple were to become estranged and had no contrary agreement in place.
- Spouses in later years may decide that they wish to make different provisions in their Will regarding their property whether for tax planning reasons or otherwise and would be unable to do so without first altering their title deeds and incurring the associated costs.
- In a situation where one partner has dementia and has lost legal capacity, the other partner wishing to direct their own share in joint property (which is subject to a survivorship destination) to someone other than their partner would be unable to do so as the survivorship destination could no longer be evacuated with the consent of both parties.
- Where one partner has been sequestrated and their spouse then dies, the result is that the whole property could become vested in the debtor’s trustee in sequestration.
As can be seen, there is no one correct answer as to whether a survivorship destination should be included in your title deeds when you buy a property as everyone’s circumstances are different. It is important however to take legal advice and to weigh up what might be the best option for you and of course to review matters should your circumstances change. Whether or not you decide to include a survivorship clause in your title deeds, it is still recommended that in all circumstances you should make a Will. For further advice on Wills and to ensure your property assets are covered, contact Partner Dot Mullally.