Severing the Joint Tenancy – Separation, Death and Property

Severing Joint Tenancy – Real Estate

If spouses hold real estate together as joint tenants on title to the property (e.g., the matrimonial home, or any other piece of real estate), then if one of the spouses die, the other spouse gets the property outright. This is known as “right of survivorship.”  When spouses separate, often they do not want the other spouse to get his/her portion of the home upon death.  A good solution to this problem is to sever the joint tenancy.  Severing the joint tenancy is a simple, cost-effective solution.  The spouse who wants to sever the joint tenancy does not need the other spouse’s consent.  All he/she has to do is attend a real estate lawyer’s office, sign the necessary paperwork, and the real estate lawyer will register a document on title to the property which will in effect sever the joint tenancy.  As a result of this process, the spouses will own the property as “tenants-in-common” and if one spouse dies that spouse’s share of the home can pass to his/her beneficiaries under his/her Will.

Wills, Powers of Attorney, and Beneficiary Designations

It is also vitally important to get a new Will and Powers of Attorney finalized once separated.  Separation and Divorce does not negate a current Will or Power of Attorney. On a final note, spouses, once separated, should review their assets (e.g., RRSPs and pensions) and insurance and ensure that their beneficiary designations are in accordance with their current wishes.

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