Survivorship Destinations. When two parties purchase a property together, title to the property can be held with or without a survivorship destination.

February 1, 2021

When two parties purchase a property together, such as partners and spouses, title to the property can be held with or without a survivorship destination. The key difference is the effect when one party dies. If a survivorship clause is put in place, the deceased’s half share of the property will automatically transfer to the surviving party. The advantage of this being that there are no further steps required to transfer title. If a survivorship clause is not put in place, the deceased’s half share will be dealt with in accordance with their Will, or the laws of intestacy if they do not have a Will.

A survivorship destination cannot be overruled by a party leaving their share of the property to a beneficiary in their Will. Parties can evacuate the destination by both agreeing to remove the clause, which is the only option for unmarried couples. Since the Succession (Scotland) Act 2016 came into force the granting of a divorce, dissolution of a civil partnership, or an annulment renders a survivorship clause ineffective, meaning the surviving party has no rights to the deceased’s half share.

After separation it can take up to two years for a divorce or dissolution to be granted. If partners or spouses have not agreed to evacuate their destination, their half share will still automatically pass to the surviving party in the event of their death irrespective of their Will.

Therefore, it is important to carefully consider how title is taken to a property when purchasing with another party in order to avoid unintended consequences on death.

Cullen Kilshaw can provide expert advice and guidance on taking title to property, separation and divorce and also Will preparation. If you have any queries, please get in touch with your local office or via our website.