When you buy a property with your husband, wife, civil partner or partner, you’ll have to decide the legal basis of how you want to own it so it’s important that you understand what the options involve.
Most couples in Scotland own their property jointly and split ownership 50:50. If you want to leave your half of the property to your husband, wife, civil partner or partner when you die, you must make sure that a legal clause is included on the title deeds. The two property ownership options are:
1. Joint ownership with a survivorship clause/destination. Here, you own the property equally with your husband, wife, civil partner or partner. If you include a legal clause on the title deeds called a ‘survivorship clause’ or a ‘survivorship destination’, you also agree that your share of the property will pass to your partner or husband when you die.
SAVVY TIP: This overrides any will you might make. It also means that if you don’t make a will, your share of the property will still pass to your husband or partner etc who you own the property with . It’s similar to the joint tenants system of ownership in England and Wales.
2. Joint ownership (with no survivorship clause). If you and your husband, wife, civil partner or partner own your property jointly and don’t have a survivorship clause on the title deeds, it means you can split ownership unequally between you. It also means that when one partner dies, the other won’t automatically inherit their share of the property. It’s similar to the tenants in common system of joint ownership in England and Wales.
SAVVY TIP: If you buy a property jointly with your husband, wife or civil partner and there’s no survivorship clause, he or she would still inherit the property up to a certain value if you died without leaving a will. However, there’s no guarantee that he or she would inherit all the property as it would depend on its value and if you bought property jointly with someone you cohabit with, they would not inherit your share of the property without a survivorship clause unless you’ve made a will saying that’s what you would like to happen.
Joint ownership with survivorship clause
- You have certainty that your share of the property will pass to your partner without you needing to draw up a will to spell it out.
- You don’t have to worry about specifying how much of the property each of you own as it’s automatically divided equally.
- Normally, if you have a survivorship clause on the title deeds, you can’t change the way you own your property without both of you agreeing to it. The process is called ‘evacuating the survivorship destination’ (which should definitely take some sort of legal jargon prize!) and it’s something that you’ll need legal help with. It is possible to add an additional clause to the title deeds saying that either one of you could remove the survivorship destination.
- You can split ownership to reflect the fact that one of you has paid the deposit or will be contributing more towards the mortgage.
- You can decide who inherits your share of the property, which is useful particularly if you have children from a previous marriage or relationship.
- Unless you draw up a will, your share of the property may pass to someone whom you wouldn’t have chosen to inherit.
SAVVY TIP: It’s worth taking advice about how you want to own your property between you and whether you want a survivorship clause and if so, what happens if you want to change the way you own your property. How you set up the legal structure of ownership could have significant consequences if you were to break up.
You can find out more about how your property is owned by checking the Registers of Scotland. The website of the housing charity Shelter also has a simple explanation of joint ownership options in Scotland.
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