A Guide to your Property, Wills and Divorce
I am not providing for a former spouse/partner in my Will. Can this be done? Do I need to make any mention of this?
If you are drawing a Will up then you are free to exclude your former spouse or partner. However, you do need to be aware of the fact that if there is no previous Court Order and/or no provision has been made for the spouse/partner then in certain circumstances they may have a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975.
We can advise on this. It may be prudent to make a short statement as to why you have not made provision for a person in the Will when providing instructions. That may assist but will not necessarily defeat a well founded claim.
Former husbands or wives (whether divorced or not) present or former partners of a civil partnership or cohabitees may claim under this Act. Minor children can also make claims.
In what circumstances might my house not be treated as part of my Estate and would not therefore be affected by my Will?
Your house will not be treated as part of your Estate (and will not therefore be affected by your Will) if it is owned as “Joint Tenancy”.
Joint Tenancy occurs where a property is held by two or more people (a maximum of 4) as Joint Tenants. This means two things:
Firstly is must be owned by them in equal shares; Secondly and more importantly in this context the property passes to the survivor or survivors (who will then own in equal shares if more than one) on the death of an owner of the property. This is regardless of any Will made (or if there is no Will the rules of Intestacy).
The alternative form of ownership is “Tenants in Common”. This is where the ownership is split between the different owners so that individual shares can form part of individual Estates and can therefore be left in a Will. The other aspect of Tenancies in Common is that the owners do not have to own in equal shares. Any proportion are allowable.
I’m holding the property as a Joint Tenant with my partner but we are not married. How would the property be left on death?
On death it would pass automatically to your partner because you were joint tenants.
Is the position affected if I have a Joint Tenancy with my spouse?
No, very simply there is a Joint Tenancy and the property passes on death.
I’m in a Civil Partnership and own the property as a Joint Tenant with my partner. What is the position then?
If you are a Joint Tenant then a civil partnership makes no difference. It passes to your partner as Joint Tenant. The position is identical to a married couple.
I own the property as a Joint Tenancy with my Partner. However, I want my share of the property to go to my children by another relationship. How can I deal with this?
You would have to convert the ownership of the property into what is called Tenancy in Common if you own it as a Joint Tenancy.
What are the implications of there being Tenants in Common?
The first and most important implication is that your share of the property then becomes part of your Estate and can then be left in your Will. The second implication is that whereas a Joint Tenancy can only be owned as a property in equal shares a Tenancy in Common can be owned in a proportion that may be agreed, for instance three quarters to one quarter.
If I am married or in a Civil Partnership, would this affect the Tenancy in Common?
No. The property can always be held as a Tenants in Common but you do need to appreciate that if you are divorcing, dissolving your partnership or separating and you leave your share of the property (held as Tenants in Common) to another person, your partner may have a claim.
In what circumstances might a Severance of Tenancy (conversion from Joint Tenancy to Tenants in Common) be desirable?
Unless you wish to record the property as being owned in unequal shares (which you can do with a Tenancy in Common) then one purpose of converting from a Joint Tenancy to a Tenancy in Common is to avoid giving your spouse/partner your share of the property. This may be for the following reasons:
The most common reason is simply if you are divorcing or have separated (do not however forget that a Severance of a Tenancy means that you will not inherit their half should your spouse/partner die).
You may wish to avoid transferring to your partner to avoid Care Home fees on your part of the estate (although this may not be advisable.)
For more information on this, please see our Guide to Care Home Fees.
For the purposes of Inheritance Tax Planning, it may be advantageous to leave property to children outside the marriage or civil partnership although the need for this sort of planning is much diminished because married couples or couples in a Civil Partnership now have an Inheritance Tax exemption of £650,000.00.
How do you convert a Joint Tenancy to a Tenancy in Common?
You have to carry out a procedure called “Severance of Tenancy”. One owner serves a Notice on the other owner whereby they declare that the property is converted from a Joint Tenancy into Tenants in Common.
Can you summarise the circumstances where I may hold the property as a Tenancy in Common with the other owner or owners?
There are three main circumstances:
- Firstly that you have actually bought the property as a Tenancy in Common. When you bought the property your solicitors should have advised you on this and this should be recorded at the Land Registry.
- Secondly, if proceedings are taken by you against a former partner or vice versa then that can result in the property being regarded as Tenancy in Common. Typically a petition for divorce or dissolution of a civil partnership may result in converting Joint Tenancy into Tenants in Common.
Thirdly, by severing a tenancy by serving a Notice and then registering it at the Land Registry.
If I make a Will and subsequently marry or enter into a Civil Partnership, is that Will revoked?
Yes, unless the Will has been made in contemplation of marriage or civil partnership.
If I am divorcing or dissolving my Civil Partnership does this affect my Will?
It does to the extent that if your spouse or partner is receiving a gift under the Will, he or she will no longer receive such gift if the divorce or separation takes place.
If I have made no Will and the house is in joint names, will my spouse or partner inherit my part of the property?
This depends on how the property is owned. If it is owned (as most properties are), as a joint tenancy then your partner will automatically inherit. This is why it is particularly important to consider the position if you are divorcing or have separated.
If however the property is owned as Tenants in Common (which may be in equal shares or may be in different proportions) then in those circumstances since the property is in separate shares it could either go to your spouse/partner in accordance with the law of intestacy (if there is no Will) or in accordance with your Will if you have left one.
It is always possible to convert the ownership of your property into a Joint Tenancy into a Tenancy in Common. This issue is dealt with above.
What is intestacy?
Intestacy is where the person has died leaving no Will.
The pack will contain a guide to making a Will and Instruction Form.