Joint Tenants or Tenants in Common?

 Separated couples will sometimes remember that, even while fighting over assets and children, they should take the time to change their wills and the designated beneficiaries of life insurance, pensions and investments.

One other thing to consider is the ownership of the family home.

When most couples buy a house, will opt to own it as "joint tenants". This phrase is added to the Transfer of Land when the house is purchased. A search in the Land Titles Office will show whether the owners are joint tenants, or tenants in common.

With tenants in common, each spouse owns 50% of the house. That means that in their Will they can leave their 50% to anyone they choose. If they die without a will, their half of the house will go to their legal next of kin (children, parents, siblings etc).

With joint tenants, there is a right of survivorship. That means that if one spouse dies, the other spouse will own the home outright. The house does not form part of the estate. It cannot be left to anyone else.

Obviously, huge problems can arise if a separated couple take their time selling the home or transferring ownership to one of them. Years may have passed since separation, and each partner may have gone on to new relationships and done new Wills. However as long as the couple are joint tenants, the survivor will own the entire house upon the death of the other.

One option for joint tenants is to "sever" the joint tenancy. This can be done by filing a document in the Land Titles Office. The owners then become tenants in common.

This issue has been taken to court many times. There have been cases in which the deceased spouse's family argues that because of the divorce proceedings and litigation, there was a clear intention to sever the joint tenancy although the correct paperwork was not done. In some cases, the facts have supported this finding. In other cases, they have not.

No one likes to contemplate their death at a time when they're also undergoing separation proceedings, but the ownership of the marital home is something that should be considered.