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Dearth during separation - what happens to jointly owned real property?

Death during separation

Monday 7th of October 2019
By: Emmy Langmaid, Solicitor, Coote Family Lawyers

I just wanted to say thank you for your help.

What happens if one of us dies before our property settlement is finalised?

Have you separated from your spouse/partner?  Are you thinking about changing your Will?

Do you and your ex-spouse/partner own a property together?

Do you know whether you own that property as joint proprietors or as tenants in common?

If you own your property as joint proprietors, you need to be aware that if you pass away prior to your property settlement being finalised, your share of the property will automatically pass to the other joint proprietor (i.e. your ex-spouse/partner) by the right of survivorship. 

Of course, this also means that your ex-spouse/partner’s share of the property would pass to you if he or she were to die prior to your property settlement being finalised.

In order to avoid this and to enable you to gift your share of the property under your Will, you would need to sever the joint tenancy to change the way you hold the property from joint proprietors to tenants in common.

As a tenant in common, your interest will not automatically pass to the surviving tenant in common.  This means that as a tenant in common you can give your interest in the property to a beneficiary of your Will.

Coote Family Lawyers is recognised as one of the top family law firms in Melbourne.  If you would like to discuss the impact of your separation on your Estate Planning and the best way to sever your joint proprietorship, contact our Wills and Estates Department on (03) 9804 0035 today.

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