Your Home, Your Partner and Your Children

Why does the way we own our home matter?

When two or more people own a home together, the way the beneficial ownership is held can affect what happens to the property when one of them dies.

If you own as beneficial joint tenants, the survivor normally becomes entitled to the property automatically through the right of survivorship. Your interest does not pass under your Will, so a Will cannot simply redirect that interest to somebody else while the joint tenancy remains in place.

If the beneficial ownership is held as tenants in common, each owner has a distinct beneficial share. That share can usually pass under the owner’s Will or, if there is no valid Will, under the intestacy rules.

What is the difference between joint tenants and tenants in common?

The distinction is mainly about the beneficial ownership of the property rather than whose names appear on the legal title.

• Joint tenants: the owners hold the beneficial interest together and the right of survivorship applies.
• Tenants in common: each owner has a distinct beneficial share. Those shares may be equal, but they do not have to be.

Even after a beneficial joint tenancy is severed, the registered proprietors usually continue to hold the legal title jointly. HM Land Registry records the change in the beneficial ownership by entering a Form A restriction on the register.

What changes if we sever the joint tenancy?

Severance brings the beneficial joint tenancy to an end. The owners then hold their beneficial interests as tenants in common, so the right of survivorship no longer applies to the severed share.

This can make a significant difference to estate planning because your beneficial share can then be dealt with by your Will. It does not, by itself, remove either owner from the legal title, end a mortgage, divide the house physically, or give one owner the right to force the other out.

Does severing mean I am taking something away from my partner?

Severance does not transfer your partner’s existing beneficial interest to you or, by itself, reduce the share they already own. What it changes is the automatic right of survivorship over your beneficial interest.

That is still an important change. If the current expectation is that the survivor will own the whole property automatically, severance alters that position. For that reason, it is often sensible to consider the change as part of a wider conversation about both partners’ Wills, security, housing needs and family circumstances.

If I leave my share to my children, will my partner have to leave the house?

Not necessarily. A Will can sometimes be structured so that a surviving partner has the right to continue living in the home for a specified period or for life, while the underlying beneficial share is ultimately preserved for children or other beneficiaries.

Arrangements of this kind need careful drafting. Issues such as responsibility for mortgage payments, insurance, repairs and outgoings, when a property may be sold, what happens if the survivor moves permanently, and any tax consequences all need to be considered in the context of the particular family.

The aim is often to find a balance: security for the person who is living in the home, alongside clarity about where your share should ultimately pass.

Do we both have to agree to sever the joint tenancy?

No. In England and Wales, a beneficial joint tenant can in appropriate circumstances sever the joint tenancy without the other owner’s agreement. A common method is to serve a written notice of severance and then apply to HM Land Registry for a Form A restriction.

Although agreement is not always legally required, the consequences can be significant. Where there is conflict, uncertainty about ownership shares, a relationship breakdown, trust issues or other property-law complications, appropriate specialist advice should be obtained before taking action.

How might I start the conversation?

For many people, this is the hardest part. Talking about what happens after one of you dies can feel uncomfortable, particularly where there are children from previous relationships.

You might start by making the conversation about clarity and protection for everyone, rather than about taking something away:

“I want us to make sure we both understand what would happen to the house if one of us died, and that we can protect each other while also being clear about what we want to leave to our children.”

Another way to approach it is to suggest reviewing both of your Wills and the ownership of the home together, so that the arrangements are considered as a whole rather than focusing on one isolated change.

What should I consider before making a change?

Before deciding whether severance is right for you, it is sensible to look at the wider picture: how the property is currently owned, what each of you wants to happen on death, whether there are children or other beneficiaries to protect, any mortgage or trust arrangements, and what security the survivor would need.

Severance is a tool, not an estate plan in itself. It is most useful when it supports a Will and wider arrangements that have been thought through carefully.